Canadian immigration law has no provisions that specifically mention trans people. This is a complex area of law for which you will need legal advice. Contact a lawyer experienced in representing trans immigrants and refugees about your individual situation.
Sometimes trans people are detained (imprisoned) as part of their immigration process.
Changing your name and/or gender marker will not affect your immigration status in Canada as long as you have documents to prove your identity. You can sponsor or be sponsored as a spouse, common-law partner or conjugal partner regardless of your gender or the gender of their sponsor or person you are sponsoring.
You may not want to return to your country because you fear discrimination and/or persecution as a trans person. If you have a well-founded fear of persecution to return to your country you may claim refugee status in Canada. You may do this even if you are out of immigration status, as long as you have not been given a removal order from Canada. Refugee status is only given for persecution and not for discrimination. Persecution is defined as a serious human rights abuse. The inability to legally change gender in a country has been determined to be persecutory in some cases. It isn’t always easy to distinguish between discrimination and persecution. For example, if you are refused a job once because you are a trans person that will probably be considered discrimination. If you are constantly refused jobs because you are a trans person and are unable to work in the occupation you are qualified for, this violates your fundamental human right to a livelihood and could be considered persecution. You do not have to have personally experienced persecution to be accepted as a refugee. The test is forward looking and focuses on whether there is a serious possibility of persecution if you were to return to your country and not your past experience. For example, someone who did not transition until after they arrived in Canada may be accepted as a refugee based on country documents that prove persecution of trans people in their country.
Canada has no list of countries where it recognizes refugees because of gender identity. Each case is individually assessed. This sometimes leads to inconsistent decisions between similar claims. Canada has a list of Designated Countries of Origin (DCO ). If you claim from a DCO stricter procedural rules apply such as shorter timelines to go to a hearing and no right of appeal to the Refugee Appeal Division, but you are still entitled to the same individualized assessment of your claim at a hearing in the Refugee Protection Division. Many trans claimants are accepted from DCOs such as Mexico and South Korea because of how trans people are treated there.
Another way to get permanent residence in Canada is by filing an application for permanent residence on humanitarian and compassionate grounds (H&C). You must be able to successfully show that you would face ‘unusual and undeserved or disproportionate hardship’ if you were to leave Canada or other, extremely compelling reasons that justify you being allowed to stay in Canada permanently.
Unlike a refugee claim, H&C does not require you to prove a well-founded fear of persecution in your country but can be accepted on the lesser standard of discrimination. It was common practice in the past for a failed refugee claimant to file an H&C application. The law has changed so that a failed refugee claimant must wait at least 12 months after the date of their refusal before they can file an H&C application. Exceptions are made to the 12-month bar for applicants who demonstrate that:
- they would face risk to life upon removal caused by the inability of their country to provide adequate medical or health care; or
- their removal would have an adverse effect on the best interests of a child under 18 years of age, who is directly affected.
Since most failed refugee claimants are removed from Canada long before a year has passed, this is no longer a good strategy. If you already have temporary status in Canada and are able to financially support yourself until an H&C application is approved in principle and are eligible for a work permit, this may be a reasonable option.
A refugee claimant cannot have a refugee claim and an H&C application pending at the same time.
Anyone thinking about making an H&C application should get legal advice first about the merits of their claim and the strength of their H&C application. Legal aid is available for refugee claims, and in certain limited circumstances may be available for H&C if applicants meet certain financial eligibility guidelines.
Free Resources
Rainbow Refugee Committee – a support group for LGBTQ refugee claimants
Legal Services Society of British Columbia – administers legal aid and gives summary legal advice
Catherine White Holman Wellness Centre - they aim to provide low-barrier wellness services to transgender and gender non-conforming people in a way that is respectful and celebratory of clients’ identity and self-expression.
This is a draft pamphlet that Robert J. Hughes recently wrote for the Catherine White Holman Wellness Centre as part of a series of pamphlets they were preparing on the legal rights of trans people.
