Consistent with our client intake experience in advance of U.S. elections, there has been a noticeable increase in inquiries about moving to Canada from south of the border. Usually, these inquiries concern people with precarious immigration status in the U.S., or Americans in relationships with people with precarious status. Recently, however, inquiries have come from U.S. citizens belonging to the LGBTQ+ community, troubled by the recent direction of circumstances in their country.
Indeed, Canada recently took the unusual step of issuing a travel advisory warning LGBTQ+ travelers heading to the U.S. Earlier this year, Petition e-4268 was placed before the House of Commons, recognizing that the world is become increasingly hostile to transgendered and nonbinary people, including in “western democracies” which have historically been presumed safe. The petition currently has 160,471 signatures. National advocacy group Human Rights Campaign declared a state of emergency in the U.S. for LGBTQ+ people.
There is no doubt that trans Americans feel particularly vulnerable, and most frequently inquire about the chances of success of a claim for refugee protection in Canada. Acknowledging the systemic obstacles faced by trans refugee claimants generally, in this article we review recent evidence regarding the situation of trans U.S. citizens in light of Canadian refugee law. Our conclusion is that currently the biggest obstacle to the success of trans claims made by Americans is the concept of internal flight alternative, given the variation in the treatment of trans Americans from state to state. This could change if a national government takes power which rolls back protections for the trans community in the United States, making claims for refugee protection easier.
The relevant questions to be asked are:
1) Do trans claims have a nexus to the international refugee definition?
2) Is there evidence of a serious risk of persecution for trans Americans?
3) Does U.S. state protection exist for trans Americans?
4) Do trans Americans have a viable Internal Flight Alternative in the U.S.?
This should be the easiest criteria for trans claimants to satisfy. People claiming to be Convention refugees must show that their fear is connected to one of five grounds or bases named in the international convention: race, religion, political opinion, nationality, or membership in a particular social group. This last category, membership in a particular social group, is designed to capture anyone with “an innate or unchangeable characteristic” such as gender or sexual orientation: Ward  2 SCR 689. Trans claimants can easily establish a nexus on this basis.
Serious risk of persecution
Refugee claimants must also show that there is a “serious risk” of persecution in their country. This means less than a 50% chance of persecution, but more than a mere possibility.
Persecution is defined widely: it is not simply physical violence but extends to threats, mental anguish, discrimination in employment, health care and housing.
In this area, the threshold for establishing serious harm should be easily met by trans Americans. The types of risks faced by the trans community include:
Trans people are four times as likely to be victims of violence in the United States, including rape and aggravated assault, and are more likely to suffer fatal violence. The US showed the highest recorded transgendered deaths in 2021.  Further, 50% of trans individuals are sexually abused or assaulted at some point in their lives, with some reports reaching as high as 66%. This is often coupled with physical assault or abuse, and the fear of possible repeat victimization. These rates are even higher in people with disabilities and homeless individuals. 15% are in custody and police, and 10% are assaulted by health care professionals.
These statistics are likely low due to underreporting of violence. Trans people are often reluctant to report violence to the police for fear of revictimization and that law enforcement officers fail to document and respond to violence against trans individuals. The so-called “gay and trans panic defense”, that perpetrators became upset on finding their victim was trans, has risen in the past few years, which has allowed perpetrators to escape punishment for their crimes. Only 15 states had prohibited these defenses as of November 2021. Troubles with including trans people under the definition of “hate crimes” have been happening for years, with only 22 states expressly enumerating gender identity in their hate crime laws.
Neo-Nazis and groups like the Proud Boys have converged outside drag events, and an anti-LGBTQ rally was health in South Florida. It has been noted that extremist hate has extended from an internet-based hatred to real life violence. Hospitals that provide care for trans children have had repeated bomb threats, and Boston Children’s Hospital was attacked by activists. Twelve times as many anti-LGBTQ+ incidents have been reported in 2022 in comparison with 2020, which clearly shows that the risk posed to members of the LGBTQ+ community in the United States is rising.
Discrimination in employment:
Trans people in the United State not only face stigma, but increasing threats to their safety in the workplace. Trans adults are twice as likely to be unemployed, and cisgender individuals earn 32% more than trans people, even with similar or higher education levels. When polled, 50% of trans people said they did not feel comfortable being “out” at work, and two thirds preferred to stay in the closet in professional interactions. It is more difficult for trans people to gain benefits and harder to earn promotions, and they receive less support from managers. Only 73% of trans people are in the workforce, compared to 82% of cis people. 42% of trans workers said they were part-time, meaning that they do not receive the same benefits as full-time employees, including healthcare insurance. Both the scarcity and precarity of trans employment leads to feelings of loneliness, instability and alienation from the rest of the work force. Constant feelings of stress also inhibit trans people from fully participating in the workplace. Safety is the biggest concern as 59% state their decision not to pursue certain industries because of their identity.
Discrimination in housing:
Housing remains a problem as 23% of trans people experience discrimination in housing and 30% report homelessness in their lives. They are forced to move into dangerous neighborhoods because of cost and discrimination, where they were less safe. From 2016 to 2018, the increase in homeless trans people was 88%, compared to 11.5% of the general population. Living in outdoors or in places not intended for human habitation raised 113% compared to 25% more generally. Being unsheltered includes high rates of health and safety threats, and unsheltered trans people are three times more likely to have a mental health condition, and eight times more likely to have a physical disability. 98% of unsheltered trans individuals reported that they engaged in behaviors that threatened their heath.
Discrimination in health care:
U.S. Medicaid does not include gender-affirming coverage and care. Discriminatory laws and regulations exclude trans people from using public facilities or accessing healthcare services, with laws creating a license to discriminate against trans people in healthcare and social services based on the provider’s assertion of religious beliefs.
Violence and threats of violence have lasting psychological effects including depression, anxiety and PTSD, and trans people face serious obstacles in accessing mental health services and healthcare. 51% of trans individuals in the United States have postponed or forgone medical care they needed because of costs, and have less access to transition-related care including counselling, hormone therapy and gender-affirming surgeries. More than half had to travel more than 10 miles from home to access transition-related care, which is very difficult without access to reliable transportation. 18% have foregone care because a lack of respect for discrimination, and 23% in the past year forwent care they needed because they were worried about discrimination and mistreatment from providers. Trans individuals reported being misgendered, called by their “deadnames” (the name they were assigned at birth and no longer identify by) and were treated psychologically rough or abused, and most were verbally abused. Lack of access to this care can exacerbate exposure to violence, including the use of black market hormones, shared hormones and needles, etc.
When the threat of persecution emanates mostly from non-state actors (i.e. private citizens or groups of citizens), the next stage of the refugee analysis is whether there is sufficient state protection to take the risk of persecution below the “serious possibility threshold”. As described by the Supreme Court of Canada in Ward (cited above):
“For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize.”
The existence of state protection in a particular country is measured not just by the existence of laws protecting social groups, but the enforcement of those laws by law enforcement officials: Budai 2021 FC 313 at para. 21. In the United States, there is an absence of both protective laws and effective enforcement of laws for the trans community.
From 2016 onwards, lawmakers have tried to limit the rights of trans individuals in public spaces through hundreds of bills restricting access to bathrooms, locker rooms, athletic competition, and healthcare services. This has produced dehumanizing rhetoric about trans people, portraying them as “mentally ill” and dangerous despite there being no evidence to show that trans inclusions and protections have created safety concerns.
In 2023 there were more than 500 anti-trans bills proposed. This is almost three times the number of such bills from the previous year. 143 of the 2023 bills were to ban gender affirming care. In 2022 there were 171 anti-transgender bills proposed in the United States. 60 of them passed in 16 states. This is more than any other time in history, and shows that it is part of a growing pattern. In 2019, there were 19 new anti-trans bills and in 2020 there were 155. Conservative lawmakers are trying to find ways to undermine the court ruling in Bostock v. Clayton County, which ruled that a federal law barring employment discrimination on the basis of sex also applies to sexuality and gender identity.
In Texas, Greg Abbot issued a directive to classify gender-affirming medical procedures as child abuse, which could have parents of trans children stripped of their parental rights. Gender affirming care for minors has already been banned in Utah in 2023. In Virginia, Governor Youngkin created new guidelines that would make it more difficult for trans youth to change their names and pronouns at school and to participate in youth programs that align with their gender identity. Oklahoma has banned nonbinary gender markers from appearing on birth certificates, and Texas has prevented trans people from changing their gender on birth certificates. There are numerous healthcare restrictions that vary depending on where one lives. In Oklahoma, a bill has been proposed to ban gender-affirming care for people under 26.
At the state level, therefore, there is strong evidence of a trend toward diminishing state protection for trans American citizens.
Internal Flight Alternative
In order to acquire refugee status, claimants must show that the risk they face does not only exist in certain parts of their country. If there is an opportunity for them to move to another part of their country where the risk is less than a serious possibility, they must take advantage of this “internal flight alternative”. However, it must be reasonable in their specific circumstances to move and reside there: Thirunavukkarasu 109 DLR (4th) 682.
This requirement is currently likely the biggest obstacle to success for American trans refugee claimants. Most of the anti-trans measures have taken place at the state level, and the question faced by trans claimants will be why they can’t move to a state where there is less persecution, and more protection. While this hurdle can be overcome by specific claimants pointing to specific unreasonable circumstances in those states, adverse conditions for trans citizens of the U.S. do not currently appear to originate from the national level.
This could change in 2024, however. Former president, Donald Trump, has announced plans to sign a series of executive orders to roll back gender-affirming care if elected in 2024, which he dismissed as the “chemical, physical and emotional manipulation of our youth.” He has pledged to sign an executive order “on day one” that would instruct federal agencies to cease all programs that would “promote” gender transitions for trans youth, and to ask Congress to prevent taxpaying funds to be used on procedures, and pass law banning gender-affirming care “in all 50 states” and ban hospitals from evidence that provide gender-affirming care.
And this could just be the beginning. As non-normative gender identity has become an increasingly contentious and politicized issue in the United States, inflammatory political messaging has driven an increase of violence against transgender people. Internal relocation to states with increased legal protection could currently be an option for the American trans community, but a change of government at the national level could swiftly increase their risk across the country.
There is a great deal of evidence supporting strong claims by American trans refugee claimants, with the concept of “internal flight alternative” as the main determinant of success.
Organizations such as TRANSport help trans individuals in the United States emigrate or seek asylum abroad in countries like Norway, Sweden and Germany which have the strong protections for trans and gender-nonconforming people. Their website states they aim to help “at-risk” trans people leave hostile environments in the US and relocate to a “more accepting world”, demonstrating the significant risk posed to trans individuals in the United States as significant numbers of trans individuals have been forced to leave the US in order to live safely.
Since 2000, 14,000 asylum claims have been filed worldwide against the United States. 2024 and the following years may see many more.
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