Dated Interpretations of Gender, Sexual Orientation, and Gender Identity Within the Paradigm of the International Refugee Law: An Argument for Amending the Definition of the Refugee Convention, 1951

Since the time the Refugee Convention of 1951 was negotiated, asylum, when claimed on the basis of gender, sexual orientation, or gender identity, has been considered under the expressly mentioned ground of membership in a particular social group contained within the definition of refugee. These unwritten grounds of gender, sexual orientation, and gender identity have been a constant source of obfuscation for lawmakers and judges alike, leading to inconsistent interpretations across jurisdictions and even laying down bizarre tests for asylum seekers to prove the genuineness of their claims. Lack of necessary knowledge or access to experts who can assist in making psychological assessments has been a roadblock in the decision-making process as well. This has resulted in inefficacious remedies or complete denial of a remedy for asylum seekers, pushing them back to the hands of their persecutors threatening their life or liberty. The present chapter argues against the status quo and proposes that gender, sexual orientation, and gender identity must be added as separate grounds by way of amending the existing Convention definition of a refugee.