ABSTRACT
Despite the increasing extension of protection obligations to sexual minorities, the international jurisprudence has yet to resolve the question of recognizing the queer mobilities of asylum claims on the basis of gender identity or expression. While the administrative and judicial decisions in anglophone jurisdictions evince a growing trend towards recognizing transgender or transsexual asylum-seekers, there remains considerable conceptual uncertainty about how this ‘particular social group’ (PSG) should be defined and about what ought to be considered as a ‘well-founded fear of persecution’ (UNHCR, 2010, p. 14). Despite the expansive analysis on sexual orientation-related asylum claims, current academic research and policy debates in relation to (trans)gender-identity refugees remain largely in their infancy. While domestic laws governing refugee determinations vary across jurisdictions, there remains little consistency about how the Convention definition is applied. Focusing on the historic US case Hernandez-Montiel v Immigration and Naturalization Service [2000], this chapter examines the definition of a PSG; the quantification of persecution; and how the nexus of gender identity-related harms is recognized to consider the queer mobilities possible for both refugees and the laws and processes that govern them.
