A Theoretical Framework: A Human Rights Reading of SOGI Asylum Based on Feminist and Queer Studies

Abstract

Since SOGI considerations have started to inform the interpretation and the implementation of the Refugee Convention (Chap. 10.1007/978-3-030-69441-8_1), a broad range of scholars from different disciplines have explored how questions of sexual orientation and gender identity can be effectively addressed within international, supranational and domestic asylum systems. The debate around aspects of RSD and beyond generated by this theoretical exchange within the same discipline and between different research areas has contributed to the (ongoing) normative movement towards a more inclusive Refugee Convention framework. In an attempt to nurture this continuous debate, we outline the theoretical and analytical frameworks that shape the subsequent analysis. We take advantage of the authors’ diverse experience in different academic fields to apply an interdisciplinary approach, addressing our subject from various perspectives. We start from the recognition that a detailed understanding and application of the Refugee Convention is vital as the floor for addressing SOGI asylum claims, but not in itself sufficient to ensure that these are fairly treated. Section 3.2 therefore looks to human rights to show how interweaving human rights frameworks with refugee law heightens understanding in this field of asylum. To this end, the main body of this chapter develops an approach that addresses the failings from a SOGI asylum perspective of international human rights law (IHRL) and international refugee law (IRL) individually. However, we then argue that, without explicitly recognising the gendered and sexualised nature of SOGI asylum, IHRL is only part of the solution. In Sects. 3.3 and 3.4 below, we claim that feminist and queer theories, and particular threads of debate within these broad disciplines, can help to understand the experiences of SOGI minorities fleeing persecution and, importantly, to explain why, despite improvements to the law and guidance that recognise the right to protection on this basis, there has been insufficient progress on the ground. In this way, combining a human rights-based approach that is largely legal with political and sociological contributions from feminism and queer theories facilitates a more holistic analysis.