From Doubt to Denial: Reflections on International Women’s Day 2026

From the drafters’ doubt that sex-based persecution would arise, to contemporary assertions that sex cannot ground protection, a consideration of gender in refugee law reveals a persistent resistance to recognising women’s protection claims. What has changed is not the harm women face, but the interpretive strategies used to acknowledge – or deny – it.

Women and the Refugee Convention

Those directly involved in the drafting of the Refugee Convention, seventy-five years ago, rejected the need either to recognise as refugees women who had been subject to gender-based persecution or to protect refugee women from sex discrimination. During the relevant debates, the President of the Conference that marked the final stage of the Convention’s drafting ‘doubted strongly’ that there ‘would be any cases of persecution on grounds of sex.’

In the decades that followed, sustained feminist engagement ensured that women’s experiences of discrimination and violence were recognised by both UNHCR and decision-makers. However, this ‘exclusionary inclusion’ came at a cost. The undifferentiated category of ‘refugee women’ has been relied on in advocacy and adjudication to obscure intersectional forms of oppression, including on the basis of sexual orientation, contributing to a racialised and denuded approach to protection.

Women, violence, and particular social groups

Article 1A(2) of the Refugee Convention defines a refugee as someone who, being outside of their country of origin, is unable to return owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. This definition, ‘properly interpreted’, includes gender-related protection claims.

Domestic violence claims may be decided on the basis that the serious harm and/or a lack of State protection from it is ‘for reasons of the applicant’s membership of a particular social group. Sometimes the group identified is broad, women in Afghanistan for example. Sometimes, however, it is narrowed, with elements or characteristics being imported that relate to either other Convention grounds, or to the persecution itself. Such decisions may also depoliticise the violence experienced, characterising it as a ‘private’ or ‘personally motivated’ act, rather than something connected with the way that power is distributed in society.

In Resisting Domestic Violence, I sought to respond to these challenges by linking discrimination law responses to violence, notably that of the CEDAW Committee, to Catherine Dauvergne’s conception of the ‘political’ as concerned with power structures that exercise coercion. Such an approach enables a woman’s response to domestic violence, violence connected with patriarchy (a wrongful structural inequality), to be understood as profoundly political. If gendered violence is discriminatory and related to the exercise of power in society, both the particular social group and political opinion grounds should be engaged. Political opinion, properly understood, includes – but of course is not limited to – views on gender roles, views which may be expressed in a range of different ways.

New Zealand: Particular social groups and political opinions

The arguments discussed above found support in two decisions of the Immigration and Protection Tribunal of New Zealand: IW (Sri Lanka) [2024] NZIPT 80231 and KA (China) [2024] NZIPT 802419.

IW fled persecution perpetrated by a ‘gangster’ and corrupt police officers, persecution that included, amongst other things, detention and ill-treatment, threats, and allegations of sexual impropriety. KA fled domestic violence from her former husband and family. Both of these cases involved gender and membership of a particular social group. They also, however, involved a range of actual or imputed political opinions, on gender and relationships, but also on corruption, crime, and impunity. The Tribunal recognised this, and applied both the particular social group and political opinion grounds, vindicating the women’s decisions to exercise autonomy and challenge unequal distributions of power. In KA, for example, the Tribunal concluded that:

The pervasive nature of gendered domestic violence against women in China, the role of the state in providing impunity by failing to adequately protect against it, and the entrenched subjugation of women and the restriction of their rights and freedoms, satisfy the Tribunal that the appellant’s predicament is both for reason of her political opinion and her membership of a particular social group (women).

Such gender-sensitive interpretations of the Convention counter the racial and other stereotyping that prevent decision-makers from seeing women’s actions as ‘political’ unless they are expressed through certain kinds of public-facing action and activism.

The decisions of the Immigration and Protection Tribunal, both in relation to gender and more broadly, are distinctive in comparative perspective. Members of the Tribunal not only engage substantively with academic research; they also shape and develop it. While New Zealand demonstrates how principled interpretation can expand protection in line with the Convention’s object and purpose, the US illustrates how interpretive retrenchment can deny it.

The US: ‘a particular social group based on sex alone is not sufficient’

In Matter of K-E-S-G- 29 I&N Dec. 145 (BIA 2025), the proposed particular social groups of ‘Salvadoran women’ and (overly narrow) ‘Salvadoran women viewed as property’, were rejected on the basis that to do otherwise would be to add sex as a Convention reason:

It is not the role of the Board to add a specific protected ground that was not included by Congress and the drafters of the Convention and the Protocol… 

Congress and the drafters of the Convention and the Protocol did not specifically identify sex as a protected ground, and we conclude that a particular social group based on sex alone is not sufficiently cognizable, given our review of this issue and the view of several Federal circuits.

This ‘originalist’ approach to the interpretation of the Refugee Convention may engage with the views of the drafters, but it runs counter to the established principles of treaty interpretation in international law. These rules require the Convention to be understood in the light of its object and purpose, including that refugees are, ‘without discrimination’, to be assured ‘the widest possible exercise’ of ‘fundamental rights and freedoms’

Authoritarian wrongs and women’s rights

 This post is being written in a rapidly changing context: rising authoritarianism, democratic backsliding, and attacks on international institutions, the rule of law, and indeed, on other States. Refugee law and adjudication can recognise women’s resistance and protect their right to live free from violence. When misogyny and authoritarianism are, however, ‘mutually reinforcing ills’, the protection of refugee women’s rights may also contribute to a broader package of what Kim Lane Schepple describes as democratic self-defence measures. This International Women’s Day, we should recognise that resistance for women is resistance for all.

Catherine Briddick is the Andrew W. Mellon Associate Professor of International Human Rights and Refugee Law at the Refugee Studies Centre and a trustee of Women for Refugee Women. To find out more about WfRW’s work and to donate, click here.

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