Are women’s rights human rights?

One immigration court says no.

When Alima Traore was a young girl in Mali, parts of her genitalia were cut off, which is the custom there.

“In my country, usually there is an old lady who does circumcision,” said Ms. Traore, who is 28, lives in Maryland and works as a cashier. “They have a small knife that they cut the intimate parts with. It is very atrocious.”

In September, the Board of Immigration Appeals rejected Ms. Traore’s plea for asylum and ordered her sent back to Mali. It ruled that she did not face persecution there, because the cutting, while “reprehensible,” could not be repeated. “The loss of a limb also gives rise to enduring harm,” the board said, but it would not be a good enough reason to grant asylum.

The board also said that Ms. Traore’s fear that any daughters she might have would be subjected to similar barbarity was of no moment. Nor did it matter that Ms. Traore’s father has said he will force her to marry a first cousin — his sister’s son.

The woman had parts of her genitals cut off, is being forced into marriage, fears her daughter will also be forced to undergo genital cutting, and will face serious consequences if she refuses forced marriage — but that isn’t enough to justify an asylum claim, because there isn’t a “risk of identical future persecution” (the full decision can be found here). I’m with Bonnie Goldstein:

In this latest case, however, the board stubbornly reasserted its earlier interpretation and rejected the higher court’s reasoning. It also took a hard line against Ms. Traore’s secondary plea that if returned to her village, she will be forced into marriage with her first cousin. “It is understandable that … an educated young woman would prefer to choose her own spouse rather than acquiesce to pressure from her family to marry someone she does not love and with whom she expects to be unhappy” (Page 5), the board concluded. But “we do not see how the reluctant acceptance of family tradition over personal preference can form the basis for a witholding of removal claim” (Pages 5 and 6). Nor could Ms. Traore prove, the board said, that her father, who stated in a letter that she must enter the arranged marriage “to uphold the reputation of our family” (Page 6), would take severe action if the wedding failed to occur. The board’s basis for believing this was that Ms. Traore’s father did not spell out what the anticipated punishment would be. Score another victory for traditional family values.

Anyone who’s familiar with these kinds of asylum cases has a pretty good idea of what the punishment for fleeing a forced marriage can be. And anyone who so much as reads the opinion can get an idea of how difficult it would be for this woman to avoid such a marriage (the court suggests that she re-locate within Mali, which is not exactly an easy task as a young single woman). This isn’t about “accepting family tradition” over her own “personal preference.” Jesus. It’s about her basic right to self-determination, and her right to refuse to hand over her rights and autonomy to another person against her will. Marital law in Mali does little for women. Marital rape is legal; polygamy is legal and widely practiced; and the law demands “wife obedience.” According to the U.S. State Department:

Family law favored men, and women were particularly vulnerable in cases of divorce, child custody, and inheritance rights, as well as in the general protection of civil rights. Women had very limited access to legal services due to their lack of education and information, as well as the prohibitive cost. For example, if a woman wanted a divorce, she had to pay approximately $60 (30,000 CFA francs) to start the process, a prohibitive amount for most women.

While the law gives women equal property rights, traditional practice and ignorance of the law prevented women, even educated women, from taking full advantage of their rights. A community property marriage had to be specified in the marriage contract. In addition if the type of marriage was not specified on the marriage certificate, judges presumed the marriage was polygynous. Traditional practice discriminated against women in inheritance matters, and men inherited most of the family wealth.

Women’s access to employment and to economic and educational opportunities was limited. Women constituted approximately 15 percent of the labor force, and the government, the country’s major employer, paid women the same as men for similar work. Women often lived under harsh conditions, particularly in rural areas, where they performed difficult farm work and did most of the childrearing.

Now why in the world would a woman be hesitant to marry someone against her will? Back to the Times article:

Last week, Ms. Traore’s lawyers filed a motion for reconsideration. They noted that the logic of the board’s decision was not always easy to follow.

The board acknowledged, for instance, that women who have been subjected to forced sterilization are routinely granted asylum even though that procedure, like genital cutting, cannot be repeated. The board, which is part of the Justice Department, rejected the reasoning of a 2005 decision by the federal appeals court in California, which refused to deport a woman who had been subjected to genital cutting in Somalia.

“Like forced sterilization,” Judge Stephen Reinhardt wrote for a unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, “genital mutilation permanently disfigures a woman, causes long-term health problems, and deprives her of a normal and fulfilling sexual life.”

That is an understatement, Professor Musalo said.

“The kind of physical and psychological devastation that goes along with female genital cutting is profound,” Professor Musalo said. “It results in sex that is absolutely torturous, that not only has no pleasure but is a locus point of pain and agony.”

Ms. Traore used simpler language.

“I don’t feel great in my body,” she said. “A woman needs to be complete.”

Professor Musalo had a theory about why the board treated forced sterilization differently from genital cutting. Sterilization affects procreation and motherhood, which are valued by men. Genital cutting, by contrast, affects only women’s sexual pleasure and autonomy.

I think that’s right on the money. The inability to produce babies for men is clearly an ongoing abuse; the inability to experience sexual pleasure — and, indeed, a risk of ongoing pain and infection from sex and childbirth — don’t count.

Here’s what the court deemed not serious enough to legitimize asylum:

Some 95 percent of women in Mali have undergone genital cutting, according to State Department reports. The procedure takes various forms, ranging from the removal of the clitoral hood to the excision of all of the external genitalia. Ms. Traore’s clitoris and vulva were removed.

The cutting is performed, a 2001 State Department report said, with “a special saw-toothed knife,” usually unsterilized and almost always without anesthesia.

I’ve written about asylum law before, and suffice it to say, it’s a mess. Gender-based asylum claims are difficult to argue, and a male-dominated judiciary means that claims like genital cutting and forced marriage may not resonate. The “War on Terror” has made the courts even more hostile to asylum-seekers whose actions can be branded as “aiding terrorism” or violating the persecutor bar (which says that if a person ever persecuted others based on race, nationality, religion etc, they’re barred from asylum), even if the person in question was acting under duress (i.e., they were literally forced to do whatever they did). Child soldiers, who are generally barred from asylum claims for their persecutor status, are a good example. And the structure of immigration courts makes it difficult to find good binding case law.

Overall, women have an incredibly difficult time proving that they’ve been persecuted and need asylum — and this case is just one example of a woman who our court system has totally and utterly failed.

Good on Adam Liptak for writing such a thorough and fair article. Hopefully it will help draw some more attention to this issue.


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30 comments for “Are women’s rights human rights?

  1. November 12, 2007 at 1:58 pm

    Thank you for posting this, Jill. We talked about just this subject in my Human Rights class last week.

    Hopefully this woman can find asylum somewhere.

  2. Hector B.
    November 12, 2007 at 2:23 pm

    The problem of female genital mutilation is immense: it is widespread through most of Africa. Although heartbreakingly unfortunate, if this woman receives asylum, so must millions of others. Prohibiting the practice at the source makes more sense than resettling tens of millions of women in the U.S.

  3. Gayle
    November 12, 2007 at 2:23 pm

    But “we do not see how the reluctant acceptance of family tradition over personal preference can form the basis for a witholding of removal claim”

    WOW. Forced marriage isn’t considered a human rights violation by US courts? How can that be?

    I’m stunned.

  4. Ashley
    November 12, 2007 at 2:29 pm

    Gayle: I suspect that the reich-wingers would love to reinstitute mandatory arranged marriages.

  5. Yuri K.
    November 12, 2007 at 3:26 pm

    I think there’s an unspoken subtext here of “Well, if we let you in, we’ll have to let all of Mali into the country.” And then pretending that that means we don’t have to work on the problem, rather than seeing a case where people would be so desperate to escape that we must act.

  6. Meg
    November 12, 2007 at 3:28 pm

    I’m also a bit surprised that they don’t consider forcing her to marry a first cousin a human rights violation. Oh, wait, it’s our courts. Of course they don’t care if foreign people inbreed themselves to death. Our lack of compassion is disgusting. You can probably be sure they’d grant asylum if they were castrated as little boys. Oh, but that affects breeding. what was I thinking? Ugh.

  7. SoE
    November 12, 2007 at 3:34 pm

    Although heartbreakingly unfortunate, if this woman receives asylum, so must millions of others. Prohibiting the practice at the source makes more sense than resettling tens of millions of women in the U.S.

    To grant millions of African women asylum in the US is probably the best way to stop that practice. On the one hand George W. Bush would take a stance against FGM faster than you can say “boo” and on the other hand quite a few Presidents in Africa would think about half their countries population differently once they’re threatening to leave.

    Many initiatives have tried to stop FGM so far but it’s still persistent. It’s going to take many more years to get rid of those practises so what are women facing it now supposed to do?

  8. james
    November 12, 2007 at 3:58 pm

    “WOW. Forced marriage isn’t considered a human rights violation by US courts? How can that be?”

    Asylum law is amazingly narrow. The (very) short version is that you have to face persecution because you’re in one of a number of protected categories: race, nationality, religion, political opinions and membership of a social group. The categories are more or less a WWII/Cold War legacy based upon who the Nazis/Communists persecuted. These characteristics are regarded as so fundamental that if you’re persecuted because of one of them you deserve refuge, but if your persecuted for some other reason you’re on your own.

    If you’re thinking that it’s spectacularly unfair that if you’re going to be killed for your religion you get protection, but if you’re going to be killed for some other reason (profession, sexual orientation, etc) you don’t, then you’re absolutely right. Feminists have got gender tentatively included as a 6th protected category in some places – which is basically what Jill’s lobbying for. There’s also lots of campaigning about sexual orientation.

    I actually think Jill’s wrong about the court being biased because of gender with regard to forced marriage. Forced conscription isn’t grounds for an asylum claim either, so they have pretty much the same reaction to men. I’m not saying they’ve been fair to her, but they have been consistent.

  9. kate
    November 12, 2007 at 5:10 pm

    Gayle quoted exactly the quote I was, which to me was glaring in its off-hand view of this woman’s plight.

    I think James understanding is most correct when looked at on the whole.

    There was also a time in this country, when asylum laws were constructed, when bringing in immigrants served an economic interest as well. Immigration has always had its roots in economics, in using immigrants as a buffer against union and worker’s rights development and in keeping a high labor surplus.

    I still think immigration policy has more to do with the latter and always will.

    I also don’t ascribe to the idea that draining a country of potential resisters and forcers of change is such a good policy. The women left behind will be further outnumbered and left to face even more abuse and injustice than if a larger percentage of women were present to force change with assistance.

    Unfortunately as well, we and Europe do more to cause refuge crises than the sufferers themselves. Their land is mined and the resources stolen away, tyrants propped up to keep plantations alive, schools burned to keep people uneducated and working for the Master.

    Burn their house and then slyly offer them asylum in yours. Makes no sense really. I’d rather we have a just government that sees the real reward in supporting economic development and independence in these countries to raise living standards.

    I know that isn’t a direct answer, but couldn’t help but get on my soapbox.

  10. Hector B.
    November 12, 2007 at 5:10 pm

    There’s also lots of campaigning about sexual orientation.

    Actually, a lesbian friend of mine has asylum because she’s from a Muslim country, and has a well-founded fear of persecution if she goes home.

  11. exholt
    November 12, 2007 at 5:12 pm

    To grant millions of African women asylum in the US is probably the best way to stop that practice. On the one hand George W. Bush would take a stance against FGM faster than you can say “boo” and on the other hand quite a few Presidents in Africa would think about half their countries population differently once they’re threatening to leave.

    That may very well be true, but that would go against one of the reasons why the bureau of immigration has existed….minimizing the number of people, especially non-Western Europeans, who could immigrate to this country as much as legally possible to forestall the perceived centuries old American fears of being flooded by immigrants.

    Family members and many immigrant classmates of mine mentioned the variety of means the immigration bureau has used to minimize and discourage immigration to the states. Reading this case sounds like another instance of immigration officials doing what they have always been doing…even if they have to stretch and twist the laws to do so as this case clearly shows.

  12. tinfoil hattie
    November 12, 2007 at 5:19 pm

    Ha. Let half of Mali into the U.S. We’re already trying to force people of “light brown” color out. Why let even “darker” people in?

    I think it’s sexism and racism at work here.

  13. Quiet Truths
    November 12, 2007 at 6:02 pm

    It is tragic for her (and everyone in that situation) but one of the earlier commenters is right. If facing what this woman faces is sufficient for an asylum claim in the United States, then about two billion people quality for asylum. That’s not going to happen.

    Our immigration policy can’t fix Mali, or any of the other places in the world where women face such repression. Political action to help this lady is emotionally gratifying (if you can stop yourself from thinking about anything past the immediate case) but does nothing for the underlying situation.

  14. dinogirl
    November 12, 2007 at 6:19 pm

    “I also don’t ascribe to the idea that draining a country of potential resisters and forcers of change is such a good policy.”

    But what that actually means is throwing any woman who has fought to get out to the lions.

    It’s like arguing that Zimbabweans should overthrow Mugabe their own selves. There ARE movements in Mali to stop all this shit, but they aren’t creating sufficient change to stop it. The existing power dynamic is too strong.

    It suits our Western idea of triumphant democracy and successful revolutions to imagine that you can’t keep the good guys down. But you CAN. Oh hell, you can. And these regimes DO. And it’s not because we’re siphoning off all the dissidents. There are tons of dissidents – but the system is too powerful.

    What possible good does it do Mali or women or anyone to force Ms Traore back there? Is she going to found a resistance and overthrow the government. The hell she is. She’s going back to torture and rape, and nobody is going to help her, and her daughters WILL face the same fate.

    Expecting asylum seekers to head back and start fixing things is ludicrous. They do not have the power. The only ones with the power are, in fact, Western states. And we have some cheek to do nothing, and then turn away those few victims of our inaction that manage to get away.

  15. nonskanse
    November 12, 2007 at 6:29 pm

    I agree with dinogirl more or less… western nations are the ones with power. But I think that we should take any and all asylum seekers. And when the govts complain “yer takin all our wimmen”, we can use our hugeness and “we’re bigger than you” to pressure the regime to change.

    This also would help avoid the problem of us invading other countries… oh wait, we only do that for oil…

    Well the first bit is good enough reason.

  16. alsojill
    November 12, 2007 at 8:57 pm

    Forced conscription isn’t grounds for an asylum claim either, so they have pretty much the same reaction to men

    I see what you’re saying here, but I have to disagree. Conscription /= marriage. On paper, at least, conscription into the military still gives you some rights to your own body. There is, again, on paper, often an end point to that conscription. For women in these situations, marriage means a lifetime in which your body legally belongs to your husband, and he can do whatever he pleases with it.

    But serving in the army is a death sentence, no?

    So is forced marriage, in many cases. And it’s not some “enemy” soldier or some horrific landmine “accident” that kills you. It’s your husband.

    So, no. They’re not being consistent.

  17. Mnemosyne
    November 12, 2007 at 9:10 pm

    The (very) short version is that you have to face persecution because you’re in one of a number of protected categories: race, nationality, religion, political opinions and membership of a social group. The categories are more or less a WWII/Cold War legacy based upon who the Nazis/Communists persecuted. These characteristics are regarded as so fundamental that if you’re persecuted because of one of them you deserve refuge, but if your persecuted for some other reason you’re on your own.

    Don’t forget our lovely policies of the 1980s, where if you were endangered by left-wing death squads, you were a refugee worthy of asylum, but if you were endangered by right-wing death squads, tough shit, you shouldn’t have been a dirty commie.

    We’re still dealing with the consequences of those policies today — a lot of our current illegal immigration problem stems from those desperate people from Guatemala and El Salvador and other Central American countries who would be murdered if they returned home, but couldn’t legally get asylum here because if our allies wanted to shoot them in the head and bury them in a shallow grave, they must be bad people unworthy of asylum.

    And I’m sorry, but telling someone who has made their way to the United States, “Sorry you have to face rape and murder in your home country — if you didn’t want it to be that way, you should have tried harder to change things while you were still there” is not only useless, it’s cruel.

  18. harlemjd
    November 12, 2007 at 11:36 pm

    while the number of women who could make a valid asylum claim if courts would recognize gender-based persecution IS huge, I would have to agree that the difference between how FGM and forced sterilization are treated is only explainable by devaluing female sexual agency over fertility. It’s not like there aren’t tons of Chinese women who could make a reasonable claim that they would face persecution if they go back.

    and as for both procedures being a one-time deal, some FGM-practicing cultures re-stitch women after they’ve had a baby, so their man can continue to enjoy that oh-so-tight feel.

  19. JenLovesPonies
    November 13, 2007 at 1:16 am

    I’m also a bit surprised that they don’t consider forcing her to marry a first cousin a human rights violation. Oh, wait, it’s our courts. Of course they don’t care if foreign people inbreed themselves to death. Our lack of compassion is disgusting. You can probably be sure they’d grant asylum if they were castrated as little boys. Oh, but that affects breeding. what was I thinking? Ugh.

    Actually, I believe that in parts of America and most of the world, marriage to a first cousin isn’t illegal. Every culture has an incest taboo, but we all have different ideas about what familial relationships are incestual.

  20. Anon.
    November 13, 2007 at 3:35 am

    Dammit, this wouldn’t have happened in Canada, whose asylum standards are more consistent and saner.

    The US sucks a lot sometimes.

  21. November 13, 2007 at 6:59 am

    If facing what this woman faces is sufficient for an asylum claim in the United States, then about two billion people quality for asylum. That’s not going to happen.

    This argument has been made several times now, but it’s a non-starter. Millions of people already qualify for asylum; very few actually seek it. Asylum proceedings don’t work the way that a lot of people seem to assume they do — if the court says that this woman has a well-founded fear of persecution because of the combination of FGM and forced marriage, it does not necessarily follow that every woman who has undergone FGM has a well-founded fear of persecution. The courts evaluate each case in its own merits. In fact, immigration courts have approved asylum claims for women who have undergone FGM and are facing forced marriage; it hasn’t opened the floodgates. As I mentioned in the post, a whole lot of asylum case decisions aren’t binding, and hardly impact future cases. So this isn’t the same as, say, the Supreme Court evaluating an issue.

    And we’ve given asylum to, for example, women who have been forcibly sterilized. That doesn’t mean that any woman who has been forcibly sterilized automatically gets asylum. And even though we have allowed sterilized women to seek asylum, we haven’t seen a massive influx of immigrants seeking asylum on those grounds. So the argument doesn’t hold.

  22. November 13, 2007 at 7:52 am

    If Mali had oil, you’d see the Bush administration and the National Review take a sudden interest in protecting women from genital mutilation.

  23. exholt
    November 13, 2007 at 2:34 pm

    The courts evaluate each case in its own merits. In fact, immigration courts have approved asylum claims for women who have undergone FGM and are facing forced marriage; it hasn’t opened the floodgates. As I mentioned in the post, a whole lot of asylum case decisions aren’t binding, and hardly impact future cases. So this isn’t the same as, say, the Supreme Court evaluating an issue.

    Jill,

    True, but the immigration courts’ idea of “merits” from the perspective from those who have gone before immigration courts to seek asylum seems to be to take the most tortured narrow definition of a “well-founded fear of persecution” so they could limit asylum seekers, especially from non-Western countries.

    As an American citizen, I would like to believe the immigration bureau courts are reasonable and doing all they can to aid asylum seekers. Unfortunately, that’s view is far removed from the vast majority of accounts I’ve heard from those who have gone through or assisted those undergoing this “experience”. Most of them, in fact, have little to complement and much to criticize about the awkward bureaucratic and what seemed to them to be an arbitrary process of the immigration bureau’s courts and the overall immigration process.

  24. Hector B.
    November 13, 2007 at 3:35 pm

    Millions of people already qualify for asylum; very few actually seek it.

    Right: the better-off, the better-educated, speakers of English, people with persuasive skills are the ones who seek and receive asylum. This doesn’t ease the sufferings of the millions who lack resources and education.

  25. dinogirl
    November 13, 2007 at 9:22 pm

    Hector B., are you seriously saying that people like Ms Traore should be shipped back wherever they came from in the hopes they’ll start a massive movement for change?

    Our (Western) history has constructed this idea that noble revolutionaries will always succeed, that the tide of progress cannot be stopped. But this is an illusion. There are lots of people in Mali and elsewhere working to end FGM and forced marriage. That they haven’t succeeded is NOT because rich countries are stealing all the clever people. This is bullshit. The ones with the power to make a difference are Western democracies – but we do next to nothing. How in good conscience can we ignore these problems, and turn away the few people who manage to escape them?

  26. November 14, 2007 at 12:57 am

    Dammit, this wouldn’t have happened in Canada, whose asylum standards are more consistent and saner.

    Oi, this is a very unfortunate and untrue myth, the US’ refugee policies are more open than ours. Canada takes more immigrants per capita.

    And I agree with Jill, I don’t really have much to add.

  27. Hector B.
    November 14, 2007 at 1:04 am

    dinogirl,
    No, I wouldn’t put the burden of stopping FGM and forced marriage on a few victims. But letting a few victims escape does not solve the root of the problem.

    It reminds me that during the Nazi regime, the U.S. took in a few highly educated European Jews, leaving the rest. We ended up fighting a war to stop Naziism though.

  28. dinogirl
    November 14, 2007 at 3:36 am

    Well, yeah. So what possible good would it have done to world to have Albert Einstein gassed?

    The burden of promoting change lies with people who have power. We don’t do half as much as we should, so we had better be prepared to at least help those people lucky enough to get away.

    It’s not an either/or. We can help the refugees AND work to make sure things change so there are less of them.

    If you’re trying to make the point that the very act of being able to get away means that a refugee is not the absolutely weakest and least powerful person in their country, then yes, you are right. There are plenty of women in Mali even worse off than Ms Traore was while there, and will be when she’s forced back. But that does not lessen the gravity of her situation, or lessen our responsibility to help her.

  29. dinogirl
    November 14, 2007 at 3:36 am

    gah. ‘to world’ should read ‘the world’

  30. November 14, 2007 at 3:52 am

    My godmother and her parents were among the highly educated European Jews who found sanctuary in the US (well, she was about 4 at the time, so she wasn’t educated yet). They knew they were in the minority, and a large proportion of their relatives who didn’t manage to emigrate ended up dead. The fact that a war had to be fought against Nazism doesn’t change the fact that my godmother and her parents survived when those who couldn’t leave did not, and if they hadn’t been taken in, not only would all three of them be dead, her younger siblings would never have existed. For that matter, her three children and three grandchildren would never have existed.

    I’d say it matters a hell of a lot to them that they got out, even if not everybody could be saved. What possible use would it have served to deport her and her parents back to Occupied Europe on the grounds that you can’t save everyone? What use is it to other suffering women in Mali if Alima Treore is deported back there to face a forced marriage and probable abuse, not to mention the high likelihood of her daughter(s) suffering the same fate she was so desperate to escape that she left her country and her old life?

    Even if you can’t save everybody, you can save some people, and it’s morally reprehensible to try and weasel out of doing the decent thing by arguing that you can’t help anybody unless you help all of them. Guess what, all the FGM survivors in Mali aren’t IN North America. Here’s one who can be helped, with very little inconvenience, because she’s right here.

    P.S. Don’t be so quick to dismiss the positive contributions which can occur when you decide to help some people even if you can’t help all. You remember the atomic bomb? Most of the theoretical research which led to it being possible, the lobbying which got the funds allocated (Einstein was t he guy who made the US government take it seriously) and much of the work in Los Alamos which took it from a theoretical possibility to an actual bomb was done by European scientists who were refugees from Nazi persecution. Enrico Fermi invented the nuclear reactor in Chicago rather than Rome because he had to flee Italy in 1939. He wasn’t Jewish, but his wife was, and his children were half-Jewish. Should Fermi, Bohr, Meitner, Szilard, Born, Pauli, Teller, Ulam, Frisch, Geiger (as in the counter), Goudsmit, Schrodinger (as in the cat), etc etc have been sent back to Occupied Europe because, hey, we can’t save everyone, so why try to save anyone at all?

    And hey, here’s a link to a list of famous refugees fleeing every kind of persecution imaginable from every country imaginable. http://en.wikipedia.org/wiki/List_of_famous_refugees Needless to say, those people went on to achieve great things in various fields.

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