Page 11 - Klinika nr 39–40 (44–45)/2025

WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

As a third method, K. T. Bartlett identifies the method of rais- inadmissible under the Convention, for example, for a woman
ing public awareness, which involves women sharing the expe- to apply for refugee status in a country of refuge out of fear of per-
riences that attest to their oppression. This method is also pre- secution in her country of origin, e.g., because she had been sub-
sented by C. K. MacKinnon , recognising „consciousness raising jected to the harmful cultural practices applied to girls and women
41
42
to be the way for women to become a „sex for itself” . Indeed, involving genital circumcision. The critical analysis of this regula-
C.T. MacKinnon criticises Aristotle’s theory of equality, which treats tion aimed to question the legitimacy of the legal norms it con-
likes alike and unlike, claiming that in both cases „masculinity or tained as universal. Examining the provision, it is apparent that
maleness is the referent for both” . Since C. K. MacKinnon believes the norm contained therein unquestionably granted protection
43
that gender and equality are both questions of power, „the law of to the interests of men, while it did not consider the protection of
equality, therefore, must begin by identifying and challenging women about their refugee experiences.
st
the power system of dominance and subordination, rather than It is only relatively recently, i.e., at the beginning of the 21 cen-
by struggling with sameness and difference” . tury, that an interpretation of the Geneva Convention has been
44
Feminist jurisprudence is a theory that reveals the masculine accepted which makes it possible to assert that the concept of
practice of law to be the dominant practice that is oppressive to- „membership of a particular social group” as used in the Conven-
wards women. Redefining the law from a feminist perspective im- tion also includes women experiencing violence in the form of, in-
plies the need to analyse it critically, and to „claim the law’s power ter alia, being forced to undergo ritual circumcision . This is an ex-
49
to change and also to resist its power to dominate” . ample of how international law began, only many years after its
45
adoption, through the exposure of specific cases of discrimination
The impact of feminist jurisprudence on law against women in law, to consider the perspective and experience
– selected examples and its relevance to higher of women, who have been exposed and have constantly been ex-
education posed to different kinds of persecution than men.
The evolution of critical thinking about law and its practice The impact of revealing the exclusively male perspective of
from a female (and more broadly, a non-male) perspective leads the aforementioned regulation ultimately led to the inclusion in
to the conclusion that this framework for interpreting the law the 2004 EU Refugee Law Directive , in Article 9(2a), that per-
50
should be increasingly taught as part of any standardised legal secution can take the form of physical and psychological vio-
higher education. Furthermore, a feminist methodology of legal lence, including sexual violence. In 2011, on the other hand, re-
analysis should be incorporated into the process of conducting cital 30 of the recast version of the above-mentioned Directive of
legal deliberations by asking the feminine question as a stand- 2011/95/EU of 13 December 2011 on standards for the qualifica-
ard practice in the analysis of existing law or the currently estab- tion of third-country nationals or stateless persons as beneficiar-
lished practice of its interpretation. Such an approach may lead ies of international protection, for a uniform status for refugees
to fundamental changes, including alterations in the enacted nor- or persons eligible for subsidiary protection, and the content of
mative content, changes of a jurisprudential nature, or changes the protection granted, explicitly states that: „It is equally neces-
in the interpretation of certain legal regulations. Irrespective of sary to introduce a common concept of belonging to a particular
this positive impact on the law itself, however, feminist critique of social group as a reason for persecution. In defining a particular
the law also teaches future lawyers and jurists to approach the law social group, due consideration should be given to gender-related
critically, which should be the fundamental aspect of the work of aspects of the applicant, where these are relevant to the applicant’s
every lawyer and jurist, for only then does the essence of the law as well-founded fear of persecution, including gender identity and
a designator of justice have a chance to fulfil the hopes placed in it. sexual orientation, which may be linked to specific legal traditions
The first example of considering the law from a female perspective and customs, leading, for example, to genital mutilation, forced
analysed here concerns the issue of refugee women . sterilisation or forced abortion.”
46
The Geneva Convention of 28.07.1951 on the Status of Refugees Furthermore, the Council of Europe also acknowledged that
47
48
with the 1967 Additional Protocol , defines in Article 1 point A3 „gender-related persecution (targeting someone because they are
who can be recognised as a refugee and, among the recognised rea- women) and gender-based violence (such as rape) can be grounds
sons of fearing persecution in one’s country of origin are the fol- for claiming international protection. However, national author-
lowing: race, religion, nationality, membership in a particular social ities do not always sufficiently consider the gender dimension
group or political opinion. Thus, from the outset, this Convention when assessing asylum claims. The system continues to see per-
did not include the criterion of gender in its normative content. secution through the lens of the male experience, which is often
The lack of inclusion of this criterion expressis verbis in the pro-
vision led to a legal interpretation, whereby it was considered

41 C.K. MacKinnon, Toward a feminist theory of the state 1991, see also C. Chen, Ca- 49 See the 2002 UNHCR Guidelines, according to which the definition of a refugee
tharine K. MacKinnon and equality theory in: Research Handbook on Feminist may refer to a situation involving gender-related aspects. This means that the jus-
Jurisprudence 2019, pp. 44‒64. tification for a refugee claim can refer to forms of persecution that relate specif-
C. Chen, Catharine K. MacKinnon and equality theory in: Research Handbook on ically to women or occur precisely because the persons concerned are women, as
42
Feminist Jurisprudence 2019, p. 48. in the case of many forms of gender-based discrimination. According to the „gen-
C.K. MacKinnon, Toward a feminist theory of the state 1991. der-related” guidelines, a refugee complaint may concern sexual violence, domestic
43
44 C. Chen, Catharine K. MacKinnon and equality theory in: Research Handbook on violence, trafficking in women, honour killings, include such forms of persecution
Feminist Jurisprudence 2019, p. 49. to which women are particularly vulnerable and which constitute gender discrim-
45 Ibidem, p. 63 ination, UNFPA State of world population 2006. A Passage to Hope. Women and
For a discussion of this example in Polish, with examples of Polish case law see International Migration. 2006, s. 59.
46
also in: B. Namysłowska-Gabrysiak, The role of law clinics in educating future 50 In order to harmonise the laws of the Member States of the European Union
female and male lawyers on the issue of counteracting gender discrimination, concerning refugee status, the Council Directive of 29.4.2004 (2004/83/EC) on
KLINIKA 2021. minimum standards for the qualification and status of third-country nationals
OJ 1991, No. 119, item 515. or stateless persons as refugees or as persons who otherwise need international
47
48 OJ 1991, No. 119, item 517. protection and the content of the protection granted was enacted.
edukacjaprawnicza.pl KLINIKA Nr 39–40 (44–45)/2025 7