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Intersectional Invisibility: Race, Gender, Sexuality, and the Erasure of Sexual Minority Women in US Asylum Law

Published online by Cambridge University Press:  24 May 2021

Roxana Akbari  and
Stefan Vogler
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Abstract

Advocates have long observed that sexual minority women are treated less favorably than sexual minority men under US asylum law. However, there has been little empirical examination of these claims in a US context. We offer the first systematic comparative empirical analysis of 199 asylum decisions for cisgender sexual minorities. Using quantitative metrics to contextualize in-depth qualitative analysis, we show that even when cisgender sexual minority men and women face very similar types of violence, women’s claims are adjudicated differently. This is particularly stark in courts’ treatment of sexual violence but is also evident in determinations of generalized persecution and individuals’ sexualities. When women attempt to use laws that are structured around straight, white, Western male perspectives and experiences, their pathways are limited and sometimes nonexistent. Although the flexibility in this area of asylum law has allowed many types of new claims, these changes have mostly benefited those assigned male at birth, and this surface malleability has ultimately worked to maintain law as a regulatory structure. Even with seemingly progressive changes in asylum law, the law itself continues to uphold race, gender, and sexuality as durable social structures and does little to ameliorate inequalities along these axes of social difference.

Type
Articles
Information
Law & Social Inquiry , Volume 46 , Issue 4 , November 2021 , pp. 1062 - 1091
Copyright
© The Author(s), 2021. Published by Cambridge University Press on behalf of the American Bar Foundation

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Footnotes

The authors would like to thank David John Frank for his mentorship and guidance on this project. This work was partially supported by University of California Irvine Undergraduate Research Opportunities Program.

References

REFERENCES

Atrey, Shreya. 2019. Intersectional Discrimination. Oxford: Oxford University Press.CrossRefGoogle Scholar
Baker, Carrie. 2008. The Women’s Movement against Sexual Harassment. New York: Cambridge University Press.Google Scholar
Baumle, Amanda K., and Compton, D’Lane. 2015. Legalizing LGBT Families: How the Law Shapes Parenthood. New York: New York Univesity Press.CrossRefGoogle Scholar
Berg, Laurie, and Jenni, Millbank. 2009. “Constructing the Personal Narrative of Lesbian, Gay and Bisexual Asylum Claimants.” Journal of Refugee Studies 22, no. 2: 195–223.CrossRefGoogle Scholar
Berger, Susan A. 2009. “Production and Reproduction of Gender and Sexuality in Legal Discourses of Asylum in the United States.” Signs 34, no. 3: 659–85.CrossRefGoogle Scholar
Best, Rachel, Lauren, Edelman, Linda, Krieger, and Scott, Eliason. 2011. “Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation.” Law & Society Review 45, no. 4: 991–1026.CrossRefGoogle Scholar
Caldwell, Paulette. 1991. “A Hair Piece: Perspectives on the Intersection of Race and Gender.” Duke Law Journal 1991: 365–96.CrossRefGoogle Scholar
Canaday, Margot. 2009. The Straight State. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Cho, Sumi, Kimberle, Crenshaw, and Leslie, McCall. 2013. “Toward a Field of Intersectionality Studies: Theory, Applications, and Practice.” Signs 38, no. 4: 785–810.CrossRefGoogle Scholar
Choo, Hae Yeon, and Myra, Marx Ferree. 2010. “Practicing Intersecionality in Sociological Research: A Critical Analysis of Inclusions, Interactions, and Institutions in the Study of Inequalities.” Sociological Theory 28, no. 2: 129–49.CrossRefGoogle Scholar
Collins, Patricia Hill. 2000 (1990). Black Feminist Thought. 2nd ed. New York: Routledge.Google Scholar
Corrigan, Rose. 2013. Up against a Wall: Rape Reform and the Failure of Success. New York: New York University Press.CrossRefGoogle Scholar
Crenshaw, Kimberle. 1989. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine.” University of Chicago Legal Forum 1989, no. 1: 139–67.Google Scholar
Crenshaw, Kimberle. 1991. “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color.” Stanford Law Review 43: 1241–99.CrossRefGoogle Scholar
Cunningham, Christi. 1998. “The Rise of Identity Politics I: The Myth of the Protected Class in Title VII Disparate Treatment Cases.” Connecticut Law Review 30: 441–501.Google Scholar
Davis, Aisha. 2015. “Intersectionality and International Law: Recognizing Complex Identities on the Global Stage.” Harvard Human Rights Journal 28: 205–42.Google Scholar
Diamond, Lisa. 2008. Sexual Fluidity: Understanding Women’s Love and Desire. Cambridge, MA: Harvard University Press.Google Scholar
Fitzsimons, Tim. 2020. “Trump Proposals Threaten LGBTQ Asylum-seekers’ Hopes of Refuge in U.S.” NBC News. https://www.nbcnews.com/feature/nbc-out/trump-proposals-threaten-lgbtq-asylum-seekers-hopes-refuge-u-s-n1236736.Google Scholar
Freedman, Estelle. 1987. “‘Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920–1960.” Journal of American History 74, no. 1: 83–106.CrossRefGoogle Scholar
Goldberg, Suzanne. 2011. “Discrimination by Comparison.” Yale Law Journal 120: 728–812.Google Scholar
Halperin, David, and Trevor, Hoppe, eds. 2017. The War on Sex. Durham, NC: Duke University Press.Google Scholar
Haney, López, Ian. 2006. White by Law: The Legal Construction of Race. New York: New York University Press.Google Scholar
Hinger, Sarah. 2010. “Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims.” Columbia Journal of Gender and Law 19: 367–408.Google Scholar
Kallinosis, Joanna. 2017. “Refugee Roulette: A Comparative Analysis of Gender-Related Persecution in Asylum Law.” DePaul Journal of Women, Gender and Law 6, no. 1: 55–93.Google Scholar
Kazyak, Emily. 2012. “Midwest or Lesbian? Gender, Rurality, and Sexuality.” Gender & Society 26, no. 6: 825–48.CrossRefGoogle Scholar
Kimmel, Michael, and Cheryl, Llewellyn. 2012. “Homosexuality, Gender Nonconformity, and the Neoliberal State.” Journal of Homosexuality 59, no. 7: 1087–94.CrossRefGoogle ScholarPubMed
La Barbera, Maria Caterina, and Marta, Lopez. 2019. “Toward the Implementation of Intersectionality in the European Multilevel Legal Praxis: B. S. v. Spain.” Law & Society Review 53, no. 4: 1167–1201.CrossRefGoogle Scholar
Lewis, Rachel. 2010. “The Cultural Politics of Lesbian Asylum.” International Feminist Journal of Politics 12, nos. 3–4: 424–43.CrossRefGoogle Scholar
Lobo, Bethany. 2012. “Women as a Particular Social Group: A Comparative Assessment of Gender Asylum Claims in the United States and United Kingdom.” Georgetown Immigration Law Journal 16: 361–404.Google Scholar
Lopez, Iris. 2008. Matters of Choice: Puerto Rican Women’s Struggle for Reproductive Freedom. New Brunswick, NJ: Rutgers University Press.Google Scholar
Luibheid, Eithne. 2002. Entry Denied: Controlling Sexuality at the Border. Minneapolis: University of Minnesota Press.Google Scholar
Luibheid, Eithne. 2013. Pregnant on Arrival: Making the Illegal Immigrant. Minneapolis: University of Minnesota Press.CrossRefGoogle Scholar
MacKinnon, Catharine A. 1995. “Reflections on Law in the Everyday Life of Women.” In Law in Everyday Life, edited by Sarat, Austin and Kearns, Thomas, 109–22. Ann Arbor: University of Michigan Press.Google Scholar
MacKinnon, Catharine A.. 2013. “Intersectionality as Method: A Note.” Signs 38, no. 4: 1019–30.CrossRefGoogle Scholar
Manian, Maya. 2020. “Immigration Detention and Coerced Sterilization: History Tragically Repeats Itself.” American Civil Liberties Union. https://www.aclu.org/news/immigrants-rights/immigration-detention-and-coerced-sterilization-history-tragically-repeats-itself/.Google Scholar
Marouf, Fatma. 2008. “The Emerging Importance of ‘Social Visibility’ in Defining a ‘Particular Social Group’ and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender.” Yale Law & Policy Review 27: 47–106.Google Scholar
McCall, Leslie. 2005. “The Complexity of Intersectionality.” Signs 30, no. 3: 1771–1800.CrossRefGoogle Scholar
McKinnon, Sara. 2016a. Gendered Asylum: Race and Violence in U.S. Law and Politics. Urbana: University of Illinois Press.CrossRefGoogle Scholar
McKinnon, Sara. 2016b. “US Gender- and Sexuality-related Asylum Law: The Politics of Transgender Asylum.” Communication and the Public 1, no. 2: 245–50.CrossRefGoogle Scholar
Meadow, Tey. 2010. “‘A Rose Is a Rose’: On Producing Legal Gender Classifications.” Gender & Society 24, no. 6: 814–37.CrossRefGoogle Scholar
Miller, Alice M. 2005. “Gay Enough: Some Tensions in Seeking the Grant of Asylum and Protecting Global Sexual Diversity.” In Passing Lines: Sexuality and Immigration, edited by Epps, Brad, Valens, Keja, and Gonzalez, Bill Johnson, 137–88. Cambridge, MA: Harvard University Press.Google Scholar
Miller, Banks, Linda Camp, Keith, and Jennifer, Holmes. 2015. Immigration Judges and US Asylum Policy. Philadelphia: University of Pennsylvania Press.CrossRefGoogle Scholar
Mize, Trenton, and Bianca, Manago. 2018. “Precarious Sexuality: How Men and Women Are Differentially Categorized for Similar Sexual Behavior.” American Sociological Review 83, no. 2: 305–30.CrossRefGoogle Scholar
Mossaad, Nadwa. 2016. Annual Flow Report: Refugees and Asylees 2014. Washington, DC: Office of Immigration Statistics.Google Scholar
Murray, David A. B. 2014a. “Real Queer: ‘Authentic’ LGBT Refugee Claimants and Homonationalism in the Canadian Refugee System.” Anthropologica 56, no. 1: 21–32.Google Scholar
Murray, David AB. 2014b. “The (Not So) Straight Story: Queering Migration Narratives of Sexual Orientation and Gendered Identity Refugee Claimants.” Sexualities 17, no. 4: 451–71.CrossRefGoogle Scholar
Musalo, Karen. 2010. “A Short History of Gender Asylum in the United States.” Refugee Survey Quarterly 29, no. 2: 46–63.CrossRefGoogle Scholar
National Center for Lesbian Rights. 2006. The Challenges to Successful Lesbian Asylum Claims. San Francisco: National Center for Lesbian Rights.Google Scholar
Neilson, Victoria. 2005. “Homosexual or Female-applying Gender-based Asylum Jurisprudence to Lesbian Asylum Claims.” Stanford Law & Policy Review 16: 417–44.Google Scholar
Puar, Jasbir. 2007. Terrorist Assemblages: Homonationalism in Queer Times. Durham, NC: Duke University Press.Google Scholar
Ramji-Nogales, Jaya, Andrew, Schoenholtz, and Philip, Schrag. 2009. Refugee Roulette. New York: New York University Press.Google Scholar
Randazzo, Timothy. 2005. “Social and Legal Barriers: Sexual Orientation and Asylum in the United States.” In Queer Migrations: Sexuality, U.S. Citizenship, and Border Crossings, edited by Luibheid, Eithne and Cantu, Lionel, 30–60. Minneapolis: University of Minnesota Press.Google Scholar
Rehaag, Sean. 2009. “Bisexuals Need Not Apply: A Comparative Appraisal of Refugee Law and Policy in Canada, the United States, and Australia.” International Journal of Human Rights 13, nos. 2–3: 415–36.CrossRefGoogle Scholar
Risman, Barbara. 2004. “Gender as a Social Structure: Theory Wrestling with Activism.” Gender & Society 18, no. 4: 429–50.CrossRefGoogle Scholar
Roberts, Dorothy. 1991. “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy.” Harvard Law Review 104, no. 7: 1419–82.CrossRefGoogle ScholarPubMed
Roberts, Dorothy. 1997. Killing the Black Body. New York: Vintage.Google Scholar
Rupp, Leila, and Verta, Taylor. 2010. “Straight Girls Kissing.” Contexts 9, no. 3: 28–32.CrossRefGoogle Scholar
Scales-Trent, Judy. 1989. “Black Women and the Constitution: Finding Our Place, Asserting Our Rights.” Harvard Civil Rights – Civil Liberties Law Review 24: 9–44.Google Scholar
Sin, Ray. 2015. “Does Sexual Fluidity Challenge Sexual Binaries? The Case of Bisexual Immigrants from 1967–2012.” Sexualities 18, no. 4: 413–37.CrossRefGoogle Scholar
Small, Jamie. 2019. “Constructing Sexual Harm: Prosecutorial Narratives of Children, Abuse, and the Disruption of Heterosexuality.” Gender & Society 33, no. 4: 560–82.CrossRefGoogle Scholar
Smith, Peggy. 1991. “Separate Identities: Black Women, Work, and Title VII.” Harvard Women’s Law Journal 14: 21–75.Google Scholar
Southam, Keith. 2011. “Who Am I and Who Do You Want Me to Be? Effectively Defining a Lesbian, Gay, Bisexual, and Transgender Social Group in Asylum Applications.” Chicago-Kent Law Review 86: 1363–87.Google Scholar
Topel, Kimberly. 2016. “So, What Should I Ask Him to Prove That He’s Gay: How Sincerity, and Not Stereotype, Should Dictate the Outcome of an LGB Asylum Claim in the United States.” Iowa Law Review 102: 2357–84.Google Scholar
Vakulenko, Anastasia. 2007. “Islamic Headscarves and the European Convention on Human Rights: An Intersectional Perspective.” Social & Legal Studies 16, no. 2: 183–99.CrossRefGoogle Scholar
Vogler, Stefan. 2016. “Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims.” Law & Society Review 50, no. 4: 856–89.CrossRefGoogle Scholar
Vogler, Stefan. 2019. “Determining Transgender: Adjudicating Gender Identity in U.S. Asylum Law.” Gender & Society 33, no. 3: 439–62.CrossRefGoogle Scholar
Westbrook, Laurel, and Kristen, Schilt. 2014. “Doing Gender, Determining Gender: Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/Sexuality System.” Gender & Society 28, no. 1: 32–57.CrossRefGoogle Scholar
Wilets, James. 1997. “Conceptualizing Private Violence against Sexual Minorities As Gendered Violence: An International and Comparative Law Perspective.” Albany Law Review 60, no. 3: 989–1050.Google Scholar