The Impact of Gender Discrimination on Statelessness
‘strikingly absent’ in statelessness literature and research.10
This gender gap in the literature is concerning given that gender discrimination
is a leading cause of statelessness worldwide and includes both direct and indirect
manifestations. Most often, direct discrimination is reflected in nationality laws that
discriminate against women, and includes limitations on their ability to acquire,
retain, and pass on their nationality to their children and their spouses. This is a
major contributor to statelessness experienced by women and children.11 Such laws
reflect an entrenched patriarchal view, reinforced through colonial practices, that
women’s nationality should be dependent on the male line. While less often discussed
in existing literature, there are also many indirect forms of discrimination, occurring
even where laws and practice are in theory gender neutral, owing to women’s
often subordinate status in society that can impact women’s (and their children’s)
vulnerability to statelessness, or render them effectively stateless, unable to prove
their identities and nationalities.12
Recognising this understudied area in the literature, this article discusses
how gender discrimination impacts statelessness, globally and with specific focus
on Southern Africa, and analyses how relevant international and selected regional
and domestic law and policy frameworks have responded to this issue. The article
seeks to contribute to the literature in this area in two ways: first, by analysing the
current literature and highlighting the need for further research on issues of gender
discrimination, both direct and indirect, related to statelessness; and, secondly,
by adding to the existing literature through analysis of current law and policy
developments in a specific context where statelessness is a growing issue of concern,
viz. Southern Africa. The region of Southern Africa, understood broadly for the
purposes of this article as comprising the sixteen Southern African Development
Community (SADC) members,13 is selected as the geographic focus of this article for
the following reasons. As noted above, statelessness, and the risk of statelessness, is
identified as a major human rights issue in this region. Further, while there is limited
but growing literature on statelessness generally in this region, there are several
relevant law and policy developments of interest in this area. Finally, there is limited
attention to gender issues in existing statelessness literature in the region, a gap to
which this article seeks to contribute.
The next section discusses some of the leading causes of statelessness, arising
See, for example, Laura van Waas Zahra Al-Barazi & Deirdre Brennan ‘Gender discrimination in nationality laws: Human rights pathways to gender neutrality’ in Niamh Reilly (ed) International Human Rights of Women (2019); UNHCR
‘Background Note on gender equality, nationality laws and statelessness’ (2022), available at https://www.refworld.org/
docid/6221ec1a4.html, accessed on 14 November 2022.
12
See Allison J. Petrozziello ‘(Re)producing statelessness via indirect gender discrimination: Descendants of Haitian
migrants in the Dominican Republic’ (2019) 57(1) International Migration 213 at 214; Betsy L. Fisher ‘Gender
discrimination and statelessness in the Gulf Cooperation Council states’ (2016) 23 Michigan Journal of Gender and Law
269.
13
While there is some debate over how the region of Southern Africa is defined, the SADC member states comprise
Angola, Botswana, Comoros, Democratic Republic of the Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius,
Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia, and Zimbabwe. SADC ‘Member States’, available
at https://www.sadc.int/member-states#:~:text=The%20Southern%20African%20Development%20Community,Republic%20Tanzania%2C%20Zambia%20and%20Zimbabwe, accessed on 11 November 2022.
11
19