Els Leye and Ino Kehrer
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absolute and an important additional source of protection42. States should ensure that refugees and
asylum-seekers’ claims are assessed in accordance with international guidance on FGM, including
the prohibition of non-refoulement.
A good example of a national provision is the case of Spain. In 2007, Spain adopted a law that
complemented its national asylum law (5/1984)43. Pursuant to article 3 of the 2007 law, provisions
concerning refugee status, enumerated in article 1, extend to women who escape their country of
nationality for a well-founded fear of persecution for gender-related purposes.44 The provision
makes it easier for judges to extend international protections to women and girls fearing prose
cution for FGM or other gender-related practices. Additionally, women and girls do not have to
depend solely on a judge’s interpretation, but can appeal to an explicit law provision that provides
for refugee status in cases of FGM.
Given that FGM is not only a violation of human rights but also amounts to torture or CIDT,
States have the obligation to protect asylum-seekers from such violation of their rights as well as
torture. Therefore, a minimum standard for gender related asylum claims should be implemented
through national legislation within the European common immigration and asylum framework
that should provide legally binding guidance to States in adopting a gender sensitive approach to
the interpretation of persecution.
Supporting women and girls with—or at risk of—FGM
Women and girls who have been subjected to FGM require, among others, health services with
different treatment options related to their health and wellbeing. These options might be FGMrelated (see table 1), or not. Substantial evidence exists on how health services in countries where
FGM is not common practice are inadequately addressing the needs of women and girls. These
inefficiencies include lack of knowledge on FGM, lack of skills and trainings to manage the care of
these clients, low competencies in handling discussions about FGM with women, racist reactions,
and exposing women and girls to humiliating or judgmental reactions45. These inefficiencies ulti
mately result in not providing victims of FGM the care that they need.
Difficulties accessing appropriate health care for FGM-related issues, including discrimination
on the part of healthcare workers and a lack of knowledge about or sensitivity to the needs of
women with FGM, violate the right to health and can amount to torture or other ill-treatment.
Taking into account the intersecting vulnerabilities related to migration/ethnicity/race/gender,
and in particular the legal status of women and girls with FGM, the provision of adequate health
care for women and girl victims of FGM becomes further jeopardized by these intersections. Indeed,
A/HRC/31/57, §33.
Law 5/1984, 26 March 1984, regulating the right to asylum and the refugee status, as amended by Law
9/1994, 16 May 1994–Asylum Law (Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la
condición de refugiado, modificada por Ley 9/1994, de 16 de mayo).
44
Law 3/2007, 22 March 2007. (Ley Orgánica 3/2007 de 22 March).
45
See for example, BMC International Health Human Rights, Female genital mutilation and cutting: a systematic
literature review of health professionals’ knowledge, attitudes and clinical practice, 2015 (Published online 2015
December 10), available at: 10.1186/s12914-015-0070-y; Cappon S, L’Ecluse C, Clays E, Tency I, Leye E., Female
genital mutilation : knowledge, attitude and practices of Flemish midwives. 31(3) Midwifery, 2015,pp. 29-35; Zaidi
N, Khalil A, Roberts C, Browne M J Obstet Gynaecol, Knowledge of female genital mutilation among health care
professionals, February 2007, 27(2):161-4; Leye E, Ysebaert I, Deblonde J, Claeys P, Vermeulen G, Jacquemyn
Y, Temmerman M, Female genital mutilation: knowledge, attitudes and practices of Flemish gynaecologists, 13(2)
Eur J. Contracept Reprod. Health Care, June 2008, pp.182-90; Ali AA, Knowledge and attitudes of female genital
mutilation among midwives in Eastern Sudan. 9 Reprod Health, 28 September 2012, p. 23.
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43
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