1 At the time of the most recent asylum reform in France, with the adoption of Law No. 2015-925 of 29 July 2015, the Minister of the Interior stated that because “Man has equal dignity everywhere in the world”, “those who are persecuted because of [...] their gender or sexual orientation must be welcomed and protected” on our territory, through recognition of the status of refugee.  However, this assertion does not seem so obvious, given the state of French law in this area.
2 Indeed, the notion of refugee was defined at the international level after the Second World War, in a context of “invisibilisation” of the rights of women and sexual minorities. According to Article 1 A (2) of the Geneva Convention of 28 July 1951, a refugee is an individual who fears persecution in his country of origin for reasons of race, religion, nationality, membership of a particular social group or political opinion.  In France, this definition was supplemented by a sixth ground of persecution, with Law No. 98-349 of 11 May 1998, which recognises paragraph 4 of the preamble to the Constitution of 27 October 1946. It opens refugee status to people persecuted in their country of origin because of their actions to promote freedom.
3 This definition, which does not take into account gender identity and sexual orientation of refugees, has been strongly criticised, first by feminist legal theorists in the 1980s, and then from a gender perspective in the 1990s (Indra, 1987; Kelly, 1993; Macklin, 1995). According to these researchers, the figure of refugee was defined according to male experiences of persecution,  leading to the exclusion of women, as well as homosexual, bisexual, transgender and intersex people from this status. In particular, they denounced the failure to consider their specific experiences of persecution, whether due to their form (the fact they take place in the private sphere) or their substance (motivated by gender identity or sexual orientation. Yet, “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”.  It is therefore necessary to consider all the consequences of the recent reappreciation of the rights of women and sexual minorities in international, European and national law, and to reshape the definition of refugee to take account of their experiences of persecution.
4 These criticisms were echoed at the international and European level from the mid-1980s onwards, with the result that the French authorities were and continue to be under considerable pressure to recognise the refugee status of women and homosexual, bisexual, transgender and intersex persons who are persecuted in their country of origin. However, despite significant efforts in this direction, French law still struggles to fully consider their specific experiences of persecution in the framework of recognition of refugee status. Indeed, although persecution in the private sphere and persecution for reasons of gender identity or sexual orientation are no longer excluded from the definition of refugee, they nevertheless remain marginalised.
The Challenge of Persecution in the Private Sphere
5 Initial developments in refugee law led, at least in France, to the concept of persecution being anchored in the public sphere alone (Greatbatch, 1989; Mulligan, 1990; Castel, 1992; Cipriani, 1993). Indeed, although it was never required by the texts, judges reserved the classification for acts imputable to the States of origin (Wilsher, 2003; Tissier-Raffin, 2016). The intervention of the legislator was necessary to put an end to this interpretation, but the classification of cases of “private persecution” continues to face obstacles in the case law.
Belated Recognition of “Private Persecution”
6 Initially, the Commission des recours des réfugiés (Refugee Appeals Board — CRR) defined persecution as a serious infringement of fundamental rights necessarily committed by a State agent,  provided that the agent was not acting in a personal capacity.  This restrictive interpretation was strongly criticised on the grounds that many acts of violence against women, homosexual, bisexual, intersex and transgender people are committed by private individuals, which therefore places them outside the scope of the definition of refugee (Jaillardon, 2008: 45). This approach was therefore gradually reconsidered.
7 At first, a slight relaxation in administrative jurisprudence was observed. Indeed, without abandoning the paradigm of the imputability of persecution to the States of origin, the judges agreed to modify their position by allowing cases of “indirect imputability”. In 1983, the Conseil d’État (Council of State — CE) agreed to treat as persecution acts committed by individuals with the encouragement or deliberate tolerance of the authorities.  Then, in 1991, the CRR accepted that acts committed by de facto authorities who had supplanted the State authorities in part of the State of origin could be classified as persecution.  However, although these developments allowed the recognition of refugee status of a number of women persecuted by religious fundamentalists during the 1990s, particularly in the Algerian  and Afghan  contexts, they remained insufficient and, most importantly, lacked justification in law. Indeed, not only was the paradigm of the imputability of persecution to the State not imposed by the texts, but it tended to distort the context and purpose of the Geneva Convention (Goodwin-Gill and Mc Adam, 2007: 98; Malher and Zimmermann, 2011: 366).
8 The legislator’s intervention was necessary to put an end to this restrictive interpretation. However, this was not without difficulty. Although a political consensus in favour of taking into account persecution committed by private actors emerged from 1997 onwards (Weil, 1997), it was only under the pressure of European Union law that the requirement that persecution was committed by the State was expressly abandoned. Thus, transposing Directive 2004/83/EC  in advance, Law No. 2003-1176 of 10 December 2003 enshrines the principle that the nature of the perpetrator of the persecution, whether public or private, is irrelevant for the purposes of refugee status. However, many cases of persecution in the private sphere are still not taken into account.
Limited Consideration of “Private Persecution”
9 Two main obstacles continue to limit the inclusion of “private persecution” in the scope of the definition of refugee.
10 First, internal asylum can be invoked against an applicant who is a victim of persecution by a non-State actor. Indeed, Article 1 of the above-mentioned Law of 10 December 2003 endorsed case law developed a few years earlier, according to which the possibility of resettlement in another part of the territory of the State of origin can provide grounds for rejecting an application for international protection.  And while it is expressly stated that the nature of the persecuting agent should be taken into account in its application, the parliamentary record indicates that the concept is only intended to apply in the context of persecution committed by private actors.  This creates an unfavourable legal regime applicable only to “private persecution”: unlike victims of State persecution, those claiming private persecution must demonstrate that they are not safe anywhere in their country, not only in their region of origin. However, it should be noted here that the judge’s power to invoke internal asylum against an applicant is discretionary. In addition, it is subject to the condition that the applicant can legally and safely settle in the area of refuge,  where they must be able to stay on a long-term basis  and lead a “normal life”. 
11 Second, we observe that the discriminatory dimension of a certain number of so-called private acts of violence has been discounted in the case law. It should be remembered that persecution is discriminatory by definition, and any applicant for refugee status must demonstrate that they have been specifically targeted in their country of origin on the basis of one of the above-mentioned grounds of persecution. However, some judges refuse to view this violence through the prism of social relations and analyse it on a strictly individual level, consigning it to personal or criminal motives (Tissier-Raffin, 2016: 402). This is particularly so in case law concerning domestic  and sexual violence.  Based on this interpretation, judges refuse to analyse the relevance of a possible reason for persecution giving rise to the right to refugee status, which is sometimes clearly applicable, and reject applications for refugee status outright, arguing that only a non-discriminatory reason determined the occurrence of the persecution.
12 Thus, although violence in the private sphere is no longer excluded as a matter of principle from the scope of the definition of refugee, it remains difficult to have this ground fully recognised as opening the way to refugee status. The same applies to serious violations of rights based on the gender identity or sexual orientation of applicants.
The Challenge of Persecution based on Gender Identity or Sexual Orientation
13 As stated above, a refugee is an individual who is persecuted for reasons of their action to promote freedom, or who fears persecution if returned to their country of origin for reasons of “race”, religion, nationality, political opinion or membership of a particular social group. Neither gender identity nor sexual orientation are among the grounds of persecution that qualify for refugee status. In this context, judges use their power of interpretation of the texts to include these grounds, at least in part, in the definition.
Mediate Inclusion of Gender-based Persecution
14 In France, the first times that refugee status was recognised in the context of gender-related persecution, i.e., persecution based on the victim’s gender identity or sexual orientation, took place between 1980 and 1990. This was possible by using the two existing political grounds for persecution in the texts, in particular political opinion  and action to promote freedom.  These grounds were invoked in favour of women activists for the (civil, political, economic or social) rights of women persecuted in their country of origin.
15 Then, in accordance with numerous recommendations in international and European law in this area, the French administrative courts invoked the ground of membership of a certain social group. This ground for persecution, which was included in the Geneva Convention in the context of the Cold War, was only rarely used in the early years of its application. While this “enigmatic locution” (Crépey, 2013: 568) remained vague for a long time, it was revived in the context of case law on gender-related persecution. However, it was not until 1997 that the CE defined the concept as a group sharing common characteristics with social visibility.  On the basis of this definition, a number of social groups have been identified to take account of gender-related persecution: the social group of women who seek to avoid female genital mutilation (FGM),  the social group of women who refuse to perform FGM,  the social group of women who fight FGM  or who refuse to enter into forced marriage or who try to avoid it.  We have also seen the emergence of the social group of parents who want to prevent their child from undergoing FGM,  the social group of homosexual,  bisexual,  transsexual,  transgender  people, people sharing an LGBTI sexual orientation,  and the social group of women victims of a transnational network of trafficking in human beings for sexual exploitation and who have succeeded in escaping or have taken steps to do so. 
16 Thus, by interpreting the pre-existing grounds for persecution from a gender perspective, judges have managed to integrate gender-related persecution into the definition of refugee, despite the silence of the texts. Unfortunately, this remains far too incomplete.
Imperfect Integration of Gender-related Persecution
17 Despite the positive developments described above, gender-related persecution is still only partially taken into account for the purposes of recognition of refugee status.
18 On the one hand, reliance on political grounds remains limited to the defence of women’s rights and does not apply, at least as far as the case law stands, to the defence of the rights of sexual minorities. We have not found any trace of this in the case law. Moreover, these grounds remain tied to the notion of activism, since they require the assertion of these rights in general and impersonal terms in the public space, through denunciation in the media or participation in a demonstration or activist structure (Korsakoff, 2021: 414-417). Consequently, a woman who limits herself to denouncing an infringement of rights from an individual perspective, without public visibility, will not be recognised as a refugee on political grounds. This condition appears to be particularly detrimental to women applicants, precisely because they are not always allowed to intervene in the public space in their country of origin (Spijkerboer, 2003: 58).
19 On the other hand, the possibility of invoking the various above-mentioned social groups is conditional on the social visibility of these groups in the country of origin. Yet, the Cour nationale du droit d’asile (National Asylum Court — CNDA) has a very restrictive definition of this condition, since it only considers it in the negative. The group must transgress a social norm, whether legal or customary, and be subject to persecution that is constant, repeated and on a sufficiently significant scale.  In other words, it is not enough that the applicant is persecuted; all women, or homosexual, bisexual, transgender or intersex people in the country must be persecuted in order for the social group to exist and therefore for it to be possible to invoke it. In practice, this means that women and members of sexual minorities who do not come from such States are not eligible for refugee status on this basis, regardless of their individual fears.
20 Thus, in the current state of administrative jurisprudence, the definition of refugee still does not manage to fully grasp all forms of gender-related persecution raised in the case law.
21 As we can see, the political ambition announced in 2015 by the Minister of the Interior remains to be fully formalised in law. French law is clearly taking increasing account of persecution in the private sphere and persecution on the grounds of gender identity and sexual orientation for the purposes of recognising refugee status. However, this process remains insufficient to date, and its completion would certainly require adjustments by the legislator, combined with improved training of judicial actors on gender issues.
Extract from a speech given by the Minister of the Interior, Bernard Cazeneuve, at the conference Le monde à travers l’asile (The world through the lens of asylum), organised by the Office français de protection des réfugiés et apatrides (French Office for the Protection of Refugees and Stateless Persons — OFPRA) at the Institut du monde arabe on 23 June 2014 to mark World Refugee Day.
Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951.
This has been explicitly reflected in international law: Office of the High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 1: Gender-related persecution within the context of Article 1A (2) of the 1951 Convention and/or its 1967 Protocol relating to the status of refugees, HCR/GIP/02/01/Rev.1, Geneva, 2002 (reissued in 2008), § 5; Committee on the Elimination of Discrimination against Women, General Recommendation No. 32 on the gender-related dimensions of refugee, status asylum, nationality and statelessness of women, CEDAW/C/GC/32, 5 November 2014, § 16.
International Court of Justice (ICJ), Advisory Opinion of 21 June 1971, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, pp. 16-66, p. 31, § 53.
CRR, 1 February 1977, No. 8637.
CRR, 3 February 1995, No. 273912.
CE, 27 May 1983, No. 42074.
CRR, 27 May 1991, No. 173787.
For example, CRR, 20 May 1995, No. 272728.
For example, CRR, 26 October 1994, No. 253902.
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
CRR, SR, 12 February 1993, No. 216617; CRR, SR, 12 February 1993, No. 230571.
Full report of the debates in the Senate during the session of Thursday 23 October 2003, JORF des débats parlementaires, 2003, No. 90 S. (C.R.), pp. 7026-7018, p. 7036.
Article L. 513-5 of the Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Residence of Foreign Nationals and the Right to Asylum — CESEDA).
CRR, 7 April 2005, No. 501034.
Conseil constitutionnel (Constitutional Court — CC), decision No. 2003-485 DC of 4 December 2003, Loi modifiant la loi No. 52-893 du 25 juillet 1952 relative au droit d’asile (Act amending Act No. 52-893 of 25 July 1952 on the right of asylum), cons. 21.
For example, CRR, 13 January 1995, No. 263781; Cour nationale du droit d’asile (National Asylum Court — CNDA), 29 July 2011, No. 10022964; CE, 3 July 2009, No. 294266; CE, 7 December 2011, No. 348228; CE, 6 June 2012, No. 345783.
For example, CNDA, 13 December 2011, No. 11008954; CNDA, 3 February 2012, No. 11018751; CNDA, 7 May 2012, No. 12004591; CNDA, 7 May 2012, No. 11014355.
For example, CRR, 30 July 1984, No. 24910; CRR, 15 September 1992, No. 226842; CRR, SR, 26 October 1994, No. 253902; CRR, 12 November 2001, No. 356865; CRR, 16 July 2002, No. 388131.
For example, CRR, 7 February 2001, No. 356008; CRR, 15 June 2001, No. 372349; CRR, 5 January 2006, No. 533211.
CE, 23 June 1997, No. 171858.
CRR, 30 March 2004, No. 454281. Since 2012, this group has been rephrased. It is now the social group of non-mutilated women: CE, Ass., 21 December 2012, No. 332491.
CNDA, 1 February 2008, No. 613847.
CNDA, 18 April 2012, No. 11027491.
CNDA, 23 July 2018, No. 15031912. The CRR had previously identified the social group of women refusing forced marriage: CRR, SR, 15 October 2004, No. 444000.
CRR, SR, 7 December 2001, No. 361050.
CRR, SR, 12 May 1999, No. 328310.
CNDA, 2 December 2010, No. 10009346 and 10009345.
CRR, SR, 15 May 1998, No. 269875.
CNDA, 8 September 2011, No. 09024882.
CNDA, 4 November 2014, No. 13021072.
CNDA, 30 March 2017, No. 16015058. The CNDA had previously identified the social group of women subjected to human trafficking and wishing to actively escape from it: CNDA, 29 April 2011, No. 10012810.
CNDA, 16 December 2008, No. 473648; CNDA, 29 November 2013, No. 13018952.