By Will Tao
A third-year political science undergraduate student, recently wrote an op-ed for her university’s Memorial University Gazette that raises an important question about a policy gap disproportionately affecting the intersection of the transgender and temporary resident communities.
In her piece, the author, an international student, highlights the challenges she has had in changing her legal gender in Canada as a result of her immigration status, a plight not shared by Canadian permanent residents and citizens who are able to request Verification of Status (“VoS”) documents in Canada to change their legal gender. She writes:
“Individuals like me who are labelled international students and foreign workers live in, work for, and contribute to communities all across Canada. There are also people who come to Canada seeking a safe harbour, waiting for a decision on their asylum applications.
We are labelled temporary, and relegated to second-class status. Our legal documentation reflects an identity which is not ours, and which we cannot correct.”
IRCC’s policy (with an emphasis that this is policy and not enshrined in legislation or regulation) is that temporary residents – international students, temporary foreign workers, and even refugee claimants are unable to change their legal gender from what is listed in their passport.
This creates obvious illogical complications. Many temporary residents come to Canada from situations, where for political, religious, and familial reasons, they are unable to change their legal gender or claim non-binary gender on crucial original documents such as passports and birth certificates. We saw an example of this with Naomi Chen, the transgender refugee claimant from Hong Kong who was forced to make her refugee claim as a man, when the very basis of her claim was on the basis of persecution because of her identification as a woman
For some reason, the Canadian immigration system attaches the ability to legally change gender on the successful granting of permanent resident status or recognition as protected persons, as if it only when they cross the threshold of welcome mat are they able to shed the very painful weight and barrier that may be keeping them from entering the door in the first place.
There are of course the practical implications. You think of the international students, who must fill in countless forms from registration at universities to providing proof of their identity. You think of temporary foreign workers who are already discriminated against when they are applying for jobs, who now in disclosing their status and work legality to potential employers must provide further explanations around gender discrepancy.
What is the fear if we allow temporary residents to change their legal gender?
Whatever floodgates/system integrity argument upholding needs to be tempered by the recognition that legal gender is at the fundamental core of a too-often stigmatized identity. The Human Rights Tribunal of Ontario in XY v Ontario (Government and Consumer Services), 2012 HRTO 726,  OHRTD No 715 [XY] stated:
“it is beyond debate that transgendered [sic] persons […] are a historically disadvantaged group who face extreme social stigma and prejudice in our society”, while noting at paragraph 215 that the former requirement “is based not on transgendered [sic] persons’ actual characteristics but on assumptions about them and what they must do in order to “be” their gender”.
We know that in the context of sexuality in the refugee determination process (especially bi-sexuality and homosexuality), that the perceived lens of heterosexuality and normativity burdens refugee claimants trying to establish their identity and prove one’s persecution (see: Dr. Megan Gaucher in her seminal book A Family Matter: Citizenship, Conjugal Relationships, and Canadian Immigration Policy [UBC Press, 2018] at Chapter 3 (see especially paragraphs 76-94).
Harsha Walia, now Executive Director of the British Columbia Civil Liberties Association, in the quote that prefaces the Chapter and the numerous case examples provided by Dr. Gaucher, that “this most impacts queer and trans-refugees.”
The number of published, transgendered-based immigration tribunal and Federal Court judicial review decisions still is relatively limited and provides only pockets for legal analysis. This is understandable as the Immigration and Refugee Board (“IRB”)’s Sexual Orientation and Gender Identity and Expression (“SOGIE”) Chairperson’s Guidelines, are only a few years old, having been introduced in 2017. Members are still in the early stages of interpreting and applying this guideline to their decision-making.
There have been some positive decisions. To draw just one example, in Pirmousaei v Canada (Citizenship and Immigration), 2019 CanLII 130750 (CA IRB), the Immigration Appeal Division (“IAD”) Member allowed the appeal of a transgender Iranian woman who failed to meet her residency obligation because her family tricked her to return to Iran, stole her travel documents, and did not accept her transgender identity. The Member took no issue with credibility, commenting simply: There is no dispute, there is no evidence before the panel to doubt that the
Appellant arrived in Canada as a Convention refugee. The panel also have no doubt to believe that she is a trans-woman from Iran.
I would offer, on the end of the spectrum, the Refugee Appeal Division (“RAD”)’s decision in X (Re), 2019 CanLII 120788 (CA IRB), where the Member found a misgendering concern raised later after the RPD and the lack of documentary evidence in transgender persecution, fatal in dismissing the appeal
The RAD Member’s criticism towards the Claimant for not raising the misgendering issue earlier at the Refugee Protection Division (“RPD”) hearing reveals the legal impact of not offering Claimants the clear ability to change their legal gender prior to the process.
The Panel writes in rejecting the Claimant’s argument that misgendering was a ground for appeal: The RAD notes that the Appellant testified at the RPD hearing that he was raised as a boy by his parents, and that this is why he continues to dress as a male. The RAD, in its review of the audio recording, finds that the RPD asked the Appellant which gender he would identify himself if requested. The Appellant testified that he would identify himself as a woman. The RAD finds that the RPD could not be expected to anticipate that the Appellant would allege, post rejection of his claim, that he was misgendered or that he suffered from trauma which impacted his ability to present his claim. The RAD finds that the Appellant and his counsel bore the responsibility to raise this issue with the RPD at the hearing. The RAD notes, as previously discussed, that the Appellant tendered an affidavit from his counsel, in which he states that the Appellant did not present with any overt symptoms of trauma. As well, the RAD has noted that the Appellant showed little signs of trauma or impairment of his ability to present his claim.
In this same case, the RAD Member also criticizes the scarce documentary evidence corroborating the Claimant’s arguments of persecution on the basis of gender. This repeats a common theme as well in sexuality cases. As Dr. Gaucher highlights in A Family Matter, at page 85:
“This suggests that country documentation can potentially trump claimant testimony should the two disprove each other. Claimant testimony is arguably considered well-founded so long as it corresponds with adjudicators’ preconceptions of sexual orientation and external documentary evidence.”
In the X (Re) 2019 CanLII 120788 decision, the RAD Member writes a decision that mirrors this line of analysis: The RAD finds in its review of the record that the Appellant has not adduced any evidence that he faced any of the problems described in the documentary evidence through his identity as a Hazara male.  In respect of the Appellant’s targeting by a classmate, the RAD notes that the Appellant stated that he successfully avoided any further contact with XXXX following the XXXX XXXX, 2016 episode. As much as the Appellant alleged that he received telephone threats two days following the episode, he addressed the problem by removing the sim card from his cellular phone. The RAD notes the Appellant alleges he remained in Afghanistan for two months prior to fleeing the country without any further interaction or problems from XXXX. The RAD finds the Appellant has advanced insufficient persuasive evidence to indicate that this individual would pose any sort of risk to the Appellant over three years later.  The Appellant has argued that an individual with a transgender identity could simply not exist in Afghanistan and that this is confirmed by the Appellant’s own experiences of being targeted by a classmate for rape and murder. The RAD has addressed this concern and found that the Appellant has not provided sufficient credible evidence to support his allegation that he would face a risk of persecution or harm, should he return to Afghanistan. His argument must fail.
With such evidentiary barriers already embedded in the refugee determination process that we know will make Transgender claims more difficult to present and adjudicate, I would suggest eliminating front-end barriers such as misgendering and the inability to choose one’s legal identity becomes of even greater significance.
Finding an Accessible Solution
For all temporary residents, especially those on the pathway to permanent residents, it is due time to provide a non-medical procedure, such as a sworn affidavit and a private and secure application process, to facilitate this fundamental human right to identify as one’s preferred gender. The fact that Canadian permanent residents and citizens can do so with relative ease, makes in my perspective, this policy limitation directly counter to the Charter language of s.15, and ripe for future litigation.
This is where we are. We can either be proactive about Canada as a Trans rights-protecting nation or continue to let our public and Government institutions, tribunals, and courts impose unnecessary trauma and harm on Trans communities, over what should be an administrative step.
I hope that IRCC changes their policy soon, on behalf of the author and so many other folks, seeking solution and action. I hope that Canada can provide Trans migrants, regardless of their ultimate interest in permanent residency or citizenship, what asking for – a greater sense of safety, of belonging, and value of their personal identities.
Will Tao, BA, JD, is a Canadian immigration and refugee lawyer at Edelmann & Co. He provides legal services in all areas of Canadian immigration and refugee law, with a focus on complex refusals, appeals and judicial reviews. Will also provides strategic advice and consulting to government, media, educational institutions, and businesses on immigration/refugee, decolonization and race/inclusion-related issues.