The Marginalisation of Transgender Refugee Women from UNHCR’s Policies of Gender Mainstreaming

This analysis counters the assumption that processes of identification within intellectual discourses of forced displacement have created a space for the empowerment of women*. I argue that they have in fact contributed to the perpetuated exploitation of non-cisgender refugees who identify as women*. I focus particularly on the processes of “gender mainstreaming” occurring within these discursive spaces that establish the “typical woman refugee” and subsequently erase those who do not complement its rigid, endorsed agenda of “womanhood.” I argue that this erasure principally affects transgender women*, with their omission from the very definition of “womanhood” in gender mainstreaming policies emblematizing their persistent, institutional neglect within discourse of forced displacement. I draw attention to two policies that are currently instituted within the programs of the United Nations High Commissioner for Refugees—the Age, Gender and Diversity Policy (2004) (hereafter AGDP) and the Women and Girls at Risk policy (2006) (hereafter WGR) and exemplify how their very discourses of identifying further vulnerability within the context of forcibly displaced communities have been at the expense of transgender women*—particularly through rigid legal definitions, asylum-claim denials, and ultimately, deportation. I conclude with the declaration that intellectual spaces in which discourses of forced displacement are developed require the institution of inclusive policies that counter the resonant practices of typification and neglect in effect; practices that are emblematized through the continued assertion of a static, existential binary.[i]

Necessarily, I begin by deconstructing the significance of the term “transgender” (and by default, “cisgender”) within the context of this analysis. Furthermore, I engage in critical feminist/trans works that have destabilized the structural confines of the term “woman” itself, having offered alternative discourses that affirm a more intersectional approach to gendered recognition. Perhaps the most significant scholarly debates pertaining to defining “transgender” identity are provided in the exhaustive account of Susan Stryker’s Transgender Studies Reader (2006). Presenting the work of Virginia price, Stryker assesses how “transgender” identity can be regarded as “somewhere on the spectrum between transvestite … and transsexual.”[ii] Whilst a transvestite changes into the clothes of the so-called “other sex,” a transsexual permanently changes genitals to claim membership in a gender other than the one assigned at birth. A “transgender” person is “somebody who permanently change[s] social gender through the public presentation of self, without [necessary] recourse to genital transformation,”[iii] a practice that existentially subverts the conflation of biological sex and gender. Prince and Stryker’s considerations on the intermediary positionality of transgender identity—alongside the expendability of genitalia in legitimizing such positionality—will be the definitional focus of this essay. Correspondingly, a “cisgender” identity can be recognized as the contrary definition—the existential antonym so to speak—to this transgender embodiment. In its most unambiguous form, a person with a cisgender identity can be described as one whose gender expression, and consequent sense of personal identity, corresponds with the socially constructed determinants of “masculinity” or “femininity” that are affiliated with one’s biological sex at birth.

Aside from the commonly acknowledged term “woman/en,” there are a number of alternatives that have embodied exclusionary/inclusionary positions pertaining to transgender women*. For instance, “womyn” is a term emergent from what has come to be known as “trans-exclusive radical feminism” (TERFism).[iv] Used initially for “Wolf Creek Womyn”s Festival” in 1974, womyn was employed to refer solely to cisgender women*, or “females who survived girlhood.”[v] Although the term has been deconditioned from its cisgender-centric practices in the last half-century through its usage by predominantly women* of color (see Cahill et al 2004, Revilla 2004), for many transgender advocates this term and its exclusionary undertones reflect a socio-spatial practice that facilitates the continued institutionalization of trans-misogyny in society and within feminism. It would hence not be irrational to implicate such a term’s function as a transphobic incursion that maintains the convention of erasing transgender women* from gendered discourses of identification (and contextually, protection), therefore being used as a semantic signifier of the marginality experienced by transgender women* refugees as a result of the cisgender-centric, exclusionary assumption of “womanhood” that is similarly implicated in discourses of gender mainstreaming. In correspondingly rejecting this assumption, I divert attention to the functional capability attested to the asterisk (*) by theorists as semantic placeholders in the categorizations of gender (and sexuality), placeholders intended to transcend the rigidity of socially constructed binaries by acknowledging the existence of “something else” other than what is written. For instance, by adding an asterisk to the prefix “trans,” it becomes possible to expand on the word’s capacity to include not only persons who identify as transgender and transsexual,[vi] but other identities that can be understood as extant under the trans* umbrella: genderqueer, bigender, gender-fluid, Two Spirit and non-binary, to name a few (see GLAAD 2018 for a comprehensive glossary of gendered terms and their meanings). For Stryker et al (2008)[GE1] ,[vii] who explore the use of a dash (-) over an asterisk (*) but with the intention to embody a similar function, this facilitates a progression that deconstructs the practice of “seeing genders as classes or categories that by definition contain only one kind of thing … [to rather] understand genders as potentially porous and permeable spatial territories … each capable of supporting rich and rapidly proliferating ecologies of embodied difference.”[viii] In the same manner in which such considerations establish the possibility for fluid semantical contexts, I utilize the asterisk (*) after “woman/en” hereafter to assert an intersectional meaning of the term “womanhood” as one that is similarly permeable and porous.

Historically, the application of gender mainstreaming within the intellectual space of forced displacement began occurring towards the turn of the twenty-first century, becoming entrenched as a priority for UNHCR after the Fourth World Conference on Women held in Beijing in 1995. A number of key policy documents had already been produced in the few years antecedent—such as the Policy on Refugee Women (1990) and the Protection of Refugee Women (1991)—but these were hastily undermined by feminist critics due to their exclusionary assumption that gendered issues were solely of concern to womyn. Largely, critics argued that the focus of these policies as womyn-orientated worked to reify the essentialist discourse of the male-female binary, emphasizing on the marginality of womyn by disregarding the relational aspects of gender affecting both men and womyn in forced displacement.[ix] Gender mainstreaming hence became an effort to address the gendered issues within the intellectual realm of forced displacement as a collective goal, an attempt to ensure that womyn’s issues be taken seriously within central, “normal” institutional activities and not be reduced to what Charlesworth aptly calls the “marginalized, peripheral backwater of specialist women’s institutions.”[x]

The AGDP was the first distinctive effort by UNHCR to address these issues within migration and bring such concerns about gendered experience from the backwater to the mainstream. It fell short however of offering the ability to conceptualize protection for all women* who are vulnerable to gendered experiences of displacement, rather conflating women*’s issues with age in the endeavor for diversity within policy. Furthermore, the AGDP identifies gender as the “socially constructed” roles of men and womyn, arguing that equality in gender can be achieved through the “equal enjoyment of responsibilities and opportunities [for] women, men, girls and boys.”[xi] It thus furthermore failed within its definition to even acknowledge the existence of woman*hood as one that can operate beyond the confines of a traditional binary of the cisgender man and womyn—an early indication of how intellectual discourses of migration and policy development conceptualize the cisgender womyn as the only “woman.” This disempowering marginality is reified in Point V. 20 of the policy, stating that “people who are lesbian, gay, bisexual, transsexual [sic] or intersex are often exposed to discrimination and abuse linked to their sexual orientation and gender identity.”[xii] This conflation not only entrenches the omission of transgender women* from definitions of woman*hood, but also assumes that transgender experiences of displacement are similarly comparable to that of the LGB community, limiting the accessibility for transgender women* to the intricate gender-based policies of identification and projection enjoyed by their cisgender counterparts. Even within the ensuing literatures that are tasked with reviewing the policy’s implementations—such as the Standing Committee’s forty-eighth meeting on its achievements and challenges within gendered displacement[xiii] —there has been no mention of how the conflation of sexuality and gender in practice has rendered transgender women* invisible, a willful form of negligence that is a symptomatic reminder of how transgender women*’s gendered existence is displaced from that of the commonly acknowledged womyn—perpetually omitted from policies and even reviews through the consistent, essentialist association of transgender identity to the categories of sexual orientation vis-à-vis gender identity embedded in the notions of LGB identity.

Similar to the AGDP, the preceding WGR policy maintains the familiar dearth of recognition for how the socially constructed roles of gender can produce a multiplicity of possibilities for self-identification, and transgender women* find themselves yet again at the forefront of this subsequent erasure. Categorically lacking any existential acknowledgement throughout the entire document of transgender women,* the policy’s outlined objectives concern state obligation—writing that the protection of womyn in forced displacement is fundamentally the responsibility of the nation-states, whose cooperation, action and political resolve are “required to enable UNHCR to fulfil its mandated functions.”[xiv] In addition to this absence of transgender women* from the discourses of obligational state protection affirmed within the WGR’s indifference towards recognizing and protecting non-cisgender women*, the WGR also works to disregard how nation-states can in fact be propagators of gendered violence against female-identifying refugees. For transgender women*, this gendered violence is evident through experiences such as legal applications for asylum in host states, in which authorities regularly undermine or simply deny one’s gender identity in order to decline the application for refuge. Here this analysis considers some examples of border policing, asylum-rejection and deportation as violent trans-misogynistic acts practiced by nation-states that are unchecked as a result of discursively limited definitions of womanhood* within displacement.

In the United States, gender mainstreaming’s marginalization of transgender women* has allowed state-administrative entities to loosely determine transgender claims of asylum at their own liberty, particularly evident through the inception of homogenizing and transphobic categories of particular social groups (PSGs) (see UNHCR 2002) within the asylum claim system. Many transgender individuals are coerced to self-identify as “homosexual” within PSGs for the purposes of obtaining asylum,[xv] a perpetuated consequence of the dearth of jurisprudence recognizing gender identity as distinctive from the spectrum of sexual identity. This is because, whereas claims to homosexuality can be accepted as membership within a PSG for asylum purposes, the Board of Immigration Appeals (BIA) and Court of Appeals are yet to recognize transgender claims in a similar way.[xvi] Even within this regard, there are limitations as membership within a PSG does not immediately qualify applicants for asylum (as explored below), but rather provides an “improved legal precedence” for one’s complex circumstances of displacement and fear of persecution to be considered.[xvii] In the US Court of Appeals of the Ninth Circuit, this homogenizing and transphobic categorization can be seen with the prescription of transgender women* from Latina America as belonging to the PSG of “homosexual men with female identities” as a legal precedence for asylum consideration.[xviii] For instance, in the case of Ornelas-Chavez v. Gonzales, where a transgender woman*’s claim for asylum was placed under this PSG, the court can be heard referring to the asylum applicant with male pronouns, involuntarily placing her within the “gay men with female sexual identities” category in order to determine whether her persecution will render her eligible for asylum in the United States.[xix] Ultimately, Ornelas-Chavez’s appeal for refuge in the United States was denied on the basis that her belonging to the PSG of “gay men with female sexual identities” was not an adequate issue in her claim for asylum. She was denied the right to self-identify as a woman*, placed within the transphobic categorization of a PSG that she did not prescribe or agree to, and finally denied asylum on the grounds that this category did not provide substantial reason to cause flight from her original destination. In fact, the rationalization behind this decision by the US Court of Appeals is self-explanatory in the following quote: “his [sic] [Ornelas-Chavez’s] claim falls short of independently establishing a clear probability for future persecution … [and] there is simply insufficient showing that homosexuals are currently subject to official persecution in Mexico.”[xx] For the United States’ asylum procedure, it is of perpetual convenience to associate transgender identities with sexual orientation as it allows for the de-legitimization of persecution through the so-called claims of societal development in an applicant’s country of flight. In the case of Ornelas-Chavez, the court instituted this by arguing that the presence of extensive developments within the legal, political, and cultural sphere of Mexican society have provided a substantial decline in discrimination against a person based on their sexual identity.[xxi]

A more recent example of a rejected US asylum claim, one that in fact resulted in the death of the applicant, is the case of Camila Díaz Córdova—a transgender woman* from El Salvador—who joined one of the “migrant caravans” that made its way towards the United States in an attempt to escape violence from her country of origin. A twenty-nine-year-old sex worker, Córdova applied for asylum due to the threat of violence from Barrio 18 (a violent transnational gang operative within the Northern Triangle states of Guatemala, El Salvador and Honduras), but was ultimately deported in 2017 and killed in February 2019 “because [the United States] didn’t believe her [claims].”[xxii] Exemplifying how policies of gender mainstreaming do not hold nation-states accountable for the protection of transgender women* in the same way that they do for their cisgender counterparts, Córdova”s deportation and ultimately her death reifies how transgender women*’s claims to asylum are subjected to insecurity resulting from a dearth of discursive, legally binding documents of recognition and protection. In fact, such a lack of recognition and protection within policies such as the AGDP and WGR also means that nation-states are not even held properly accountable when their decisions are incorrect and based on prejudice or unfounded disbelief. For instance, whilst statistically El Salvador (and the Northern Triangle more widely) has one of the highest murder rates in the world,[xxiii] and most crimes against the queer community in the region go unpunished (Amnesty International 2017, 9),[xxiv] US Customs and Border Protection still “processed [Córdova] for expedited removal and transferred [her] to ICE [US Immigrations and Customs Enforcement] custody” as they did not believe her claims to being in danger.[xxv] In fact, ICE claim that Córdova appeared three months into her detention in immigration court and asked the judge to return to El Salvador, a claim that close associates and activists of hers in El Salvador and the United States disagree with given the historicity of violence in the region that she was exposed to.[xxvi] Ultimately, on 3 February 2019 after being deported back to El Salvador and returning to sex work, Camila Díaz Córdova passed away due to injuries sustained in a violent attack in the capital city[xxvii] that could have, and should have, been prevented with humanitarian intervention and asylum.

Within the United Kingdom’s asylum system, one in which transgender claims to asylum are once again lumped together with LGBT claims, applicants are even expected to adhere to a Eurocentric politics of visibility as a transgender woman* upon arrival to their first interview.[xxviii] The intersections between cultural norms and gender identity become more pertinent in this context, and the AGDP again represents its rampant failure to provide substantial support for transgender women* within processes of gender mainstreaming. The document defines “diversity” as inclusionary of cultural perspectives, nationality, gender identity, and other personal characteristics when assuring “gender equality” as a core commitment.[xxix] The UK Border Agency’s (UKBA) guidelines in discerning the “credibility” of asylum claims made by transgender persons however acts in contravention of this commitment to gender “diversity,” particularly with its expectation that transgender women* should/would provide evidence of the “realization and experience of [their] gender identity”[xxx] upon arrival to claim asylum. According to the guidelines, for the UKBA this evidence is likely to include “personal, legal and medical adjustments; telling family, friends and colleagues; and possible surgery.”[xxxi] We are reminded, however, that such implications of how one is expected to embody their transgender identity are inherently Eurocentric, neglectful of the reality that an outward display of gendered transitioning/affirmation may not be “socially, medically and/or legally possible in the applicant’s country of origin,”[xxxii] or similarly, prescribe to the same notions of the gender binary that are embodied within the Anglo-European context. Thus, in noticeable addition to the already established discursive omission of transgender women* from gender mainstreaming is the presence of a chauvinistic, cultural incompetence of institutions of forced displacement in recognizing the social-cultural and political variables of how transgender women* are able to define their identities vis-à-vis cultural expectation and pressure in the home country.

As in the United States, there has been a growing permeation of action and demand for accountability surrounding detention centers, into mainstream UK socio-political discourses—particularly in regards to their administrative privatization as a manner with which to assimilate forcibly displaced persons into becoming a currency for corporate profit within the prison industrial complex (see report by Corporate Watch 2018). Predictably, the experiences of transgender women* within these detention centers—centers that are supposedly only pit stops whilst a person awaits the outcome of their claim, but which in reality are glorified prison sentences based on border politics—are reflective again of the shortcomings of discourses of gender mainstreaming in identifying and protecting gendered minorities. Stonewall’s “No Safe Refuge” report (2016)[GE2] , conducted with the UK Lesbian & Gay Immigration Group (UKGLIG), provides testimonies from various different queer persons, including transgender women*, who have experienced immigration detention in the United Kingdom. Vani’s testimonies throughout the document are a shocking exposure to the treatment of transgender women* within the United Kingdom’s detention centers. An asylum seeker from India, Vani speaks about her misplacement in a male detention center despite informing the staff that she identified as a woman* and had begun her transition: “I had to fight it out. I had to tell them that I should be having a private room. I cannot share a room with men. It is for my safety. The next problem is the communal showers. Obviously, I cannot go to the shower and people are watching me. If they see me, I would be in big trouble. I could not use the shower. For fifteen days I could not use the shower. That was really bad.”[xxxiii] She continues that, being a self-medicating transgender woman*, the medical staff at the center (prison) she was detained at did not offer any alternative treatments to her: “I have to take regular cycle of hormones. I normally get hormonal implants. Then in detention they told me I cannot have any kind of hormones. If I do not have the hormones, I get hot flushes, and all those hormonal imbalance things. I get like blisters, get depressed, get anxiety and all sorts of stuff.”[xxxiv] Such willful neglect and absence of accountability in regards to detention centers and their staff treating transgender women* with any specialist care, results from the lack of any particular focus within gender mainstreaming policies such as the AGDP and WGR in recognizing and protecting gendered minorities. In fact, detention centers—nation-states and ultimately corporations—have the ability to freely conflate transgender identity to that of the LGB community, leading to a trend of misrecognition and a statistical increase in the probability of violence for transgender women*, for instance, by placing them in a men’s detention center.

Ultimately, what is possible to take away from this analysis? As it has pointed out, there is an ever-present salience of how cis-centric definitions of womynhood have inherently contributed to the omission of transgender women* from gendered discourses within the intellectual contexts of forced displacement. Transgender women* have found their gender identity and subsequent experiences of forced displacement to be wrongly conflated with the LGB community, whose requirements of protection are shaped more distinctively on the basis of their sexual orientation rather than gender identity (although of course intersections are possible). This has inherently contributed to a trend of neglect and disempowerment, demonstrated through the treatment of transgender women* within US courts, the UKBA’s policies and similarly within the context of deportation and detention centers. Ultimately, gender mainstreaming policies must redefine womanhood* within their policies to recognize transgender women* as gendered subjects in order to ensure that they are relieved of the perpetuated marginalization of their identity, and provided with the dedicated care, identification, and tailored international protection in policies offered to their cisgender counterparts. Until this goal of trans-inclusive womanhood* in policies is realized, it would be fallacious to argue that gender mainstreaming as a process within the intellectual spaces of displacement has contributed to the empowerment of all women*, only womyn.

References

Amnesty International, Americas: “No Safe Place”: Salvadorans, Guatemalans and Hondurans Seeking Asylum in Mexico Based on Their Sexual Orientation and/or Gender Identity. Amnesty International, 2017. https://www.amnesty.org/en/documents/amr01/7258/2017/en/%20/ [Date accessed: 06/05/19].
 

Bach, J, “Assessing Transgender Asylum Claims.” Forced Migration Review 42. (2013): 35-38.

Cahill et al., “Speaking Back: Voices of Young Urban Womyn of Color Using Participatory Action Research to Challenge and Complicate Representations of Young Women” in Harris, A., All About the Girl : Culture, Power and Identity. Routledge: London, 2004.

Charlesworth, H. Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations, in 18 Harv. Hum Rts, J, 1 (2005): 1-18

Conklin, A., “ICE Denies Media’s Claims That Camila Diaz Cordova Died After Involuntary Deportation.” The Daily Caller, February 27, 2019. https://dailycaller.com/2019/02/27/camila-diaz-cordovas-killed-deported-ice/ [Date accessed: 06/05/19].

CorporateWatch2., “UK Border Regime: Detention Centres Briefing October 2018.” Corporate Watch 2018. https://corporatewatch.org/the-uk-border-regime-detention-centres-briefing/ [Date accessed: 06/05/19]

Darayanani Law Group Blog, “Asylum for Transgender People.” 2014.  http://www.dlgvisablog.com/blog/2014/5/15/asylum-for-transgender-persons. [Date accessed: 21/01/19]

 

Dlakavu, S, Ndeulu, S. Writing and rioting: Black womxn in the time of Fallism, (University of South Africa: 2017).

Edwards, A. “Transitioning Gender: Feminist Engagement with International Refugee Law and Policy 1950-2010.” Refugee Survey Quarterly 29, no. 2. UNHCR, (2010): 21-45]

 

Flores, A., “A Transgender Woman Who Sought Asylum in the US was Deported and Killed in El Salvador.” Buzzfeed News, 2019. https://www.buzzfeednews.com/article/adolfoflores/transgender-migrant-killed-asylum-el-salvador?bftwnews&utm_term=4ldqpgc#4ldqpgc [Date accessed: 06/05/19]

Freedman, J. “Mainstreaming Gender in Refugee Protection.” Cambridge Review of International Affairs 23, no. 4 (2010): 589-607.
 

GLAAD, “GLAAD Media Reference Guide – Lesbian / Gay / Bisexual Glossary of Terms.” [online], GLAAD. https://www.glaad.org/reference/lgbtq [Date accessed: 22/01/19]
 

Jenkins, E, A. “Taking the Square Peg Out of the Round Hole: Addressing the Misclassification of Transgendered Asylum Seekers.” Golden Gate U. L. Rev. 40 (2009): 67-95

Jones, N., Bridging the Gap – Trans*: What Does the Asterisk Mean and Why Is It Used? [online], Q Center 2013. http://www.pdxqcenter.org/bridging-the-gap-trans-what-does-the-asterisk-mean-and-why-is-it-used/ [Date accessed: 21/01/19]

Layers, M., Valle, E., “Transgender woman deported from US Murdered in El Salvador.” Washington Blade, February 17, 2019. https://www.washingtonblade.com/2019/02/17/transgender-woman-deported-from-us-murdered-in-el-salvador/ [Date accessed: 06/05/19]

Renteria, N., “Trans asylum-seeker killed after US deportation back to El Salvador.” EILE Magazine, February 26, 2019. https://eile.ie/2019/02/26/trans-asylum-seeker-killed-after-us-deportation-back-to-el-salvador/ [Date accessed: 06/05/19]

Smythe, V., “I’m credited with having coined the word “Terf”. Here’s how it happened.” [online]. The Guardian, November 29, 2018. https://www.theguardian.com/commentisfree/2018/nov/29/im-credited-with-having-coined-the-acronym-terf-heres-how-it-happened [Date accessed: 21/01/19]
 

Stryker, S., The Transgender Studies Reader. Routledge: London, 2006.
 

Valdes, Francisco, “Queer, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex”, “Gender”, and “Sexual Orientation”,” Euro-American Law and Society 83 Cal. L. Rev. 3 (1995), 3-10.

UNHCR, Age, Gender and Diversity Policy, UNHCR, 2011. http://www.unhcr.org/uk/protection/women/543b922a6/age-gender-diversity-policy.html [Date accessed: 19/01/19]

UNHCR, Age, Gender and Diversity Mainstreaming, UNHCR Executive Committee of the High Commissioner’s Programme, 2010. http://www.refworld.org/pdfid/4cc96e1d2.pdf [Date accessed: 20/01/19]

UNHCR, Conclusion on Women and Girls at Risk No.105 (LVII), UNHCR Executive Committee of the High Commissioner’s Programme, 2006. http://www.unhcr.org/uk/excom/exconc/45339d922/conclusion-women-girls-risk.html [Date accessed: 20/01/19]

UNHCR, Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A (2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UNHCR 2002. https://www.unhcr.org/uk/publications/legal/3d58de2da/guidelines-international-protection-2-membership-particular-social-group.html [Date accessed: 06/05/19]
 

UNHCR, Guidelines on the Protection of Refugee Women, UNHCR 1991. http://www.unhcr.org/uk/protection/women/3ba6186810/unhcr-policy-on-refugee-women-1990.html. [Date accessed: 18/01/19]

UNHCR, UNHCR Policy on Refugee Women, UNHCR, 1990. http://www.unhcr.org/uk/protection/women/3ba6186810/unhcr-policy-on-refugee-women-1990.html [Date accessed: 18/01/19)

United States Courts for the Ninth Circuit, For Publication: United States Court of Appeals for the Ninth Circuit: Francisco Ornelas-Chavez vs Alberto R. Gonzales, 2006. http://caselaw.findlaw.com/us-9th-circuit/1470690.html. [Date accessed: 21/01/19]

United States Courts for the Ninth Circuit, Ornelas-Chavez v. Gonzales, No 04-72798, 2005. https://www.ca9.uscourts.gov/media/view.php?pk_id=0000022248. [Date accessed: 21/01/19]