Withholding the letter: Transgender asylum seekers, legal gender recognition, and the UNHCR mandate

Abstract

In the absence of legal gender recognition (LGR), transgender people carry documents that misrecognize them. The link between LGR’s absence and exposure to violence and exclusion—experiences that often force transgender people to flee—is clarified by scholarship. However, when a trans person seeks asylum, they are often provided with documents that, rather than unambiguously recognizing their bearer, repeat this misrecognition. This incongruence often exposes transgender asylum seekers to greater risk. Previously, I have argued that, at the moment in which they seek international protection, transgender asylum seekers experience a form of statelessness due to the absence of LGR. In this paper, I build on this argument, drawing on a range of empirical studies to suggest that conditions of statelessness already exist prior to fleeing. As a result, I argue that the UNHCR is under obligation to provide documents recognizing their holder, even if this runs counter to state legislation.