Twice rejected: The Plight of Intersex, Transgender and Gender Non-conforming Refugees

“Go back to your country! “Those I imagine are the last words a refugee would want to hear. Picture that coupled with the distress of identifying or expressing a gender that does not conform to the dominant social and cultural norms. This is the normal for Intersex, Transgender and Gender Non-conforming Refugees and Asylum Seekers (ITGNC). So what is gender identity and gender expression, and what do these have to do with refugees?

Sex can be defined as the biological and physiological differences between men and women. Gender refers to the socially perceived characteristics of boys/men and girls/women. On the other hand, gender identity is an individual’s inner and personal experience of gender. It is a person’s sense of where they belong within the gender spectrum. A person’s gender identity may be the same as or different from the sex which they were assigned at birth. Gender expression, conversely, is defined as how a person openly expresses or presents their gender. This may include behaviour and outward appearance such as their mannerisms, mode of dressing, hair, etc.

From time immemorial, a refugee has been described as a person who is apprehensive of being persecuted on account of their; race, religion, nationality, membership of a particular social group, and political opinion. The UNHCR (The UN Refugee Agency) has recognized that ITGNC persons meet this threshold and fall under those who are susceptible to prosecution due to membership to a particular social group. There is no closed list in this specific group as it has been left open for interpretation in an evolutionary manner. This interpretation approach has allowed the inclusion of gender minorities as they fall in the category of a group that contains innate or unchangeable features.

Nevertheless, some countries still impose punitive sanctions to the extent of the death penalty upon persons who do not subscribe to the normative standards of gender identity and gender expression. Apart from non-inclusion and damnation by the law, they are despised by society, and even for some by their very own families. This exclusion, violence and victimization forces them to flee their countries and seek asylum in countries with better human rights protection, such as South Africa, Germany, and Canada, to mention a few. For instance, approximately 11,400 asylum seeking applications were filed in the United States alone between 2012 and 2017 by ITGNC persons.

The biggest nightmare for ITGNC persons is proving their eligibility status within the strict guidelines of the UNHCR. A study carried out by the Centre of American Progress (CAP) found that 69% of intersex persons faced discrimination over the past year (2020) while seeking asylum due to the failure to convince the refugee status determination judges of the risk of prosecution. In essence, the fate of one’s stay is dependent on one’s ability to furnish sufficient evidence to prove the risk of persecution and not merely discrimination.

Nonetheless, the gist of the matter is that a person is forced out of their home country due just because society does not accept who they are. Why should we insist on the archaic ways of the past at the expense of one another? Why should you make someone feel less of a human by denying them their home? Denying someone their human rights is just as good as challenging their very humanity. (Mahatma Gandhi)

Maria Nambuya Bosita

JKUAT LEGAL CLINIC