Canadian Refugee Law
Claims based on Sexual and Gender Identity
Many LGBTQ refugee claimants have fled countries due to various forms of persecution, including torture, arrest, imprisonment, extortion, rape, and death threats because of their sexual or gender identity. In fact, a report published by Human Rights Watch in December 2008, identified that over 80 countries worldwide still criminalize same-sex sexual activity. Under these circumstances, living with dignity and basic human rights is sometimes impossible, oftentimes requiring survival skills which include remaining silent or hidden and sometimes fleeing one’s country of origin.
Refugee protection in Canada due to sexual orientation or gender identity (SOGI based claims) has been in place for almost two decades. Canada was in fact, one of the first Western nations to grant refugee status due to SOGI based claims, having done so in 1991. This landmark case led the way to the Supreme Court ruling Canada v. Ward a year later, which resulted in the explicit inclusion of sexual orientation within Canadian refugee law. This meant that any individual claiming refugee status because of fleeing persecution due to their sexual orientation had the right to access Canada’s refugee determination process.
Recently, the United Nations High Commissioner for Refugees (UNHCR) issued a guidance note in November 2008, for refugee claims relating to sexual and gender identity, making it the first internationally recognized document which acknowledges the right for LGBTQ individuals to claim refugee status based on persecution due to their sexual or gender identity. Upon completing a formal Access-to-Information request, legal scholar Sean Rehaag found that in 2004, 1351 refugee claims based on sexual orientation were decided, with acceptance rates of approximately 50%, about on par with the average grant rate for all refugees for that year.
For further information about Canadian Refugee Law and SOGI based claims…
LaViolette, N. (2009). The UNHCR’s guidance note on refugee claims relating to sexual orientation and gender identity. The American Society of International Law, 13(10), 1-8.
LaViolette, N. (2007). Gender-related refugee claims: Expanding the scope of the Canadian guidelines. International Journal of Refugee Law, 19(2), 169-214.
Rehaag, S. (2008). Patrolling the borders of sexual orientation: Bisexual refugee claims in Canada. McGill Law Journal, 53(1), 59-102.