Rethinking EU Law Beyond the Liberal Feminist Paradigm
Can a belief in the value of gender equality associated with the lifestyle of the westernized woman be regarded as a reason for persecution and thus lead to the granting of refugee status under the Qualification Directive 2011/95? In the recent case K,L v Staatssecretaris van Justitie en Veiligheid (‘K,L’), the CJEU decided that it can. To this end, it characterized the belief as a type of ‘identificatory’ conviction that was so fundamental to the young women’s life choices that it rendered them part of a ‘particular social group.’ It thereby declined to follow the referring court’s reasoning which had instead conceptualized the belief as a ‘religious belief’ or a ‘political opinion.’
The decision has largely been welcomed as a positive development towards a gender-sensitive EU asylum law (see here and here). In this blogpost, I complexify this reading of the case by showing that it begets a tension between the liberal feminist philosophical paradigm and its critics. Specifically, I argue that the CJEU’s classification of the young women’s belief in the value of gender equality as ‘identificatory’ (as opposed to ‘religious’ or ‘political’) perpetuates a long-standing criticism of the liberal feminist paradigm, namely its failure to acknowledge the private realm as an important sphere for advancing women’s equality.
Gender Equality as a Protected Belief under EU Refugee Law
Directive 2011/95, which implements international refugee standards, specifies that Member States must grant asylum if there is a well-founded fear of being persecuted upon returning to one’s country of origin. When assessing whether to grant refugee status to an applicant, Member States shall take into account five possible reasons for persecution: race, religion, nationality, membership of a particular social group, or political opinions. While gender-related reasons are not specifically mentioned in the Directive, EU law (in line with international and national laws) has been interpreted to include gender as a potential reason for persecution.
In K,L, two teenage girls from Iraq, K and L, applied for international protection in the Netherlands on the ground that throughout the five years that they had resided in the Netherlands, they had incorporated the lifestyle of their westernized Dutch peers in that they had become aware of the freedom, as young women, to make their own life choices. They argued that they feared persecution if they were to return to Iraq because of the new identity they had formed in the Netherlands. After their refugee applications were rejected, they initiated legal proceedings before the District Court of the Hague, which sent a preliminary reference question to the CJEU.
A key question was whether the young women’s belief in the lifestyle of the westernized woman (which the CJEU later re-defined as the belief in the fundamental value of gender equality) should be classified as ‘religious belief’ or ‘political opinion’ in line with Art. 10(1)(b) and (e) or as a belief that would render the two women members of a ‘particular social group’ in line with Art. 10(1)(d) of the Directive. Individuals classify as members of a ‘particular social group’ if they hold a ‘characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’, as one amongst three criteria mentioned in said article.
The referring court, the rechtsbank den Haag, favored a classification of the belief in the value of gender equality as ‘religious belief’ or ‘political opinion’. Relying on Dutch legal practice, it argued that the concept of westernized women constitutes too diverse a group to be subsumed under a ‘particular social group.’ The CJEU disagreed, noting that although it was possible to classify the belief in gender equality as ‘religious belief’ or ‘political opinion’, this was not so in the respective case (para. 52). Instead, following the Opinion of AG Collins, the belief in gender equality rendered the two Iraqi women members of a ‘particular social group’ because it determined a range of life choices that were so fundamental to their identity that they could not be asked to renounce it.
K,L, the Liberal Feminist Paradigm and its Critics
The decision arguably corresponds to the classic private/public binary which much of liberal feminist theory is grounded upon and which has been a long-standing point of criticism thereof.
For a long time, restrictions of women’s political and civil rights were justified on the basis that women are, due to their distinct biological features, unsuited for any type of economic or political activities outside the confines of the family home. Liberal feminist theory progressively challenged this assumption of women’s natural (and biological) inferiority, arguing that women are equally autonomous beings, capable of self-determination and a sense of justice. They pressed for voting rights and later the adoption of anti-discrimination laws intended to ensure that women have, just like men, access to citizenship, education, employment, and political office.
The CJEU decision to justify the teenage girls’ belief in gender equality as rendering them part of a ‘particular social group’ reflects essential aspects of this liberal feminist rationale. In para.44, the CJEU writes that the belief in gender equality by a woman
“entails being free to make her own life choices, particularly in relation to her education and career, the extent and nature of her activities in the public sphere, the possibility of achieving economic independence by working outside the home…choices with are fundamental to her identity…that she should not be forced to renounce.”
This case excerpt displays the CJEU’s preoccupation with the girls’ autonomous life choices. It clarifies that for the CJEU gender equality is primarily a matter of shaping conditions in the public sphere that allow women to make the same autonomous life choices than men, which the liberal feminist paradigm accentuates and endorses.
This paradigm which seemingly underpins the CJEU’s decision has had significant historical success, gaining women access to employment and education as well as other public pursuits like the military or athletic endeavors. Yet as critics like Catherine MacKinnon or Susan Okin have repeatedly pointed out, its success is limited because it overlooks the fact that it is often in the purportedly intimate or private realm of the family where dominant behaviors and norms resist the improvement of women’s equality. This criticism is arguably also applicable to the liberal feminist premises of the K,L judgement, which the CJEU could have avoided by explaining in more detail why it refused to classify the young women’s belief in gender equality as ‘political opinion’ and/or ‘religious belief’.
Feminism as a Mode of Political Resistance in the Private Sphere
The CJEU has previously defined the concept of political opinion quite broadly, by including not just political ‘opinions’ but also ‘thoughts’ and ’beliefs’. However, it has also limited the definition of political opinion claims to their open articulation against a governmental entity. In other words, a refugee’s expression of her political opinion or belief must have occurred in the public sphere to count as a political opinion in the sense of the Directive.
This is an unduly narrow construction of political opinion claims. An opinion can also be political if a statement or action against a political entity is voiced and acted upon in everyday private life. Think of the two Iraqi women returning to Iraq where they continue living the lifestyle of the westernized woman they adopted in the Netherlands. This chosen lifestyle would not be regarded as ‘political’ in that it would not consist of opinions or beliefs that the women publicly expressed against the Iraqi government. It would not constitute an electoral, partisan, or activist political (feminist) expression or activity. Yet this does not make it any less political. Especially women engage in modes of political resistance in the private realm, through the way they behave, dress, or the beliefs they voice. To ignore this denies an important aspect of women’s political agency. It closes our eyes to the fact that “[t]he private is public for those for whom the personal is political”.
Feminism as a Mode of Religious Resistance in the Private Sphere
The CJEU has on several occasions underlined that ‘religion’, as found in Art. 10(1)(b) of the Directive, should be given an extensive interpretation. In Fathi, it did not only decide that the concept of ‘religion’ covers both traditional religions and other beliefs that might be of a spiritual, non-theistic and atheistic nature. It also reaffirmed that religion can both be a public activity as much as a purely personal matter. Despite these board interpretations of the concept of religion, it is not difficult to understand why the CJEU refrained from defining the belief in gender equality in religious terms in the K,L judgement.
In our contemporary cultures, religion is often associated with entrenched modes of female subordination that cannot be easily reconciled with the lifestyle of the modern westernized woman. This is not surprising, as influential conservative segments of major religions often espouse strict gender roles that require women to submit to the authority of men – especially when it comes to marriage, patrimonial administration, or modesty. Yet while most major world religions are linked to patriarchal structures, progressive segments within religious traditions support the view that religion promotes equal dignity and equality for men and women alike. In all major religious traditions, there is therefore internal disagreement about the connection between religion and patriarchy.
This matters for the CJEU’s refusal to classify the belief in gender equality as a type of religious belief. Imagine again our two young women returning to Iraq and living the lifestyle of the westernized woman that they have incorporated in the Netherlands. The fact that they live a life inspired by the belief in the value of gender equality does not automatically mean that such belief is not religious. Precisely because adherents of a religion disagree about the connection between their religion and patriarchal practices, their opposing opinion may also be plausibly regarded as a religious belief with important consequences, such as triggering internal debates on the position of women within Islam beyond the orthodox views currently predominant in official circles. To deny women’s opinion any religious foundation therefore means disavowing their conviction in gender equality to become part of the theological discourse of their community. It means not paying attention to the fact that what may seem like a personal struggle in the private sphere of the home can at its core concern a fundamental disagreement about the substance of religious beliefs.
Enhancing Individual Self-Actualization through EU Law
In para.52 of K,L, the CJEU explicitly states that it depends on the ‘circumstances of the case’ whether a belief such as that of the two women in the value of gender equality can be classified as ‘political’ or ‘religious’. In the present case, the CJEU clearly assumed that the circumstances did not justify this conceptualization. Yet the judges failed to make the normative assumptions underlying this conclusion explicit. This is unfortunate as it makes the judgement susceptible to the criticism of the liberal feminist paradigm that it is premised upon. The CJEU could have enriched the process of self-actualization and emancipation of women under its influence by explaining the normative assumptions that the refusal to classify the teenage girls’ belief system as ‘political’ or ‘religious’ was premised upon.
