Affirmative Exclusion? Sex, Gender, Persecution and the Reformed Swedish Aliens Act

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The revised version of the Swedish Aliens Act contains a specific category providing protection for persons who fear persecution on account of their sex. Benefits afforded under this category, however, fall short of those under the 1951 Convention relating to the Status of Refugees or article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to evaluate this novelty, the following article explores the conceptual differences between sex and gender as well as the ensuing consequences for a discussion of legal protection. Closer analysis reveals that the newly introduced category suffers from a linguistic ambiguity as well as a systematic fallacy. Cases involving sex-related methods of persecution could be regularly brought in under the 1951 Convention or prominent human rights instruments. As the 1951 Convention, on the one hand, and ECHR50 and CAT84, on the other, are mirrored in two Swedish protection categories, an additional provision simply serves no constructive purpose and must be regarded as superfluous. Finally, the authors explore whether the Swedish solution takes due account of legal norms proscribing discrimination. They conclude that equal enjoyment of asylum and protection is impaired by the inferior protection offered under the newly introduced category, when compared to other, more favourable categories. As the effects of the new category fall under the definition in article 1 CEDW79, its introduction in 1997 is to be interpreted as a breach of Sweden's obligations under article 2(a) CEDW79, namely, with respect to its duty to ensure through law the practical realisation of the principle of equality of men and women. It follows that Sweden is required to change the Aliens Act in an appropriate manner under article 2(f) CEDW79, providing for the modification or abolition of discriminatory legislation.


  • Kristina Folkelius
  • Gregor Noll
Research areas and keywords

Subject classification (UKÄ) – MANDATORY

  • Law


  • human rights, refugee law
Original languageEnglish
Pages (from-to)607-636
JournalInternational Journal of Refugee Law
Issue number4
Publication statusPublished - 1998
Publication categoryResearch