To be a refugee (a necessary prerequisite to claiming asylum) you must meet the UN definition as incorporated in the host country’s domestic law:
a person who:
- has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’;
- ‘is outside the country of [their] nationality’; and
- is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country’.
It is important to note that “gender” is not one of the 5 grounds enumerated.
However, while the definition is from the UN, the “the right of asylum is a right of States, not of the individual” or the UN. That is, each state decides who does and does not fall within one of the 5 categories even if their home state might not decide that way.
This article discusses that “woman” (or a subset of “woman” e.g. divorced woman, transitioned woman etc.) could fit one of the categories - usually the “social group” or “religion” or “race”. It also mentions that common law jurisdictions have divergent approaches:
- Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large.
- In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’.