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Sexual Orientation And Gender Identity of Canadian immigrants

An increasing number of asylum seekers are persecuted because of their sexual orientation and gender identity. Most lesbians, gay, bisexual and transgender (“LGBT”) and their families are subject to physical, verbal, sexual abuse and discrimination. Lawmakers have been exploring the rising refugee claims by “LGBT” or homosexuals to develop positive legislations and regulations in national and international levels.

According to the 2007 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (“Yogyakarta Principles”), “sexual orientation” refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender, or more than one gender. “Gender identity” refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body, and other expressions of gender, including dress, speech and mannerisms. Courts in various jurisdictions have likewise affirmed that sexual orientation relates not just to conduct or a series of sexual acts, but equally to a person’s identity and how he or she seeks to express it.

According to the Immigration and Refugee Protection Act (IRPA), a “Convention refugee” is defined as “a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion” and who cannot obtain the protection of his or her country of nationality or habitual residence. This limits the grounds for a Convention refugee’s well-founded fear of persecution to five possibilities and the “membership in a particular social group” is an open-ended category. The Ward decision indicated three possible categories of “particular social group”:

  • Groups defined by an innate or unchangeable characteristic; Individuals fearing persecution on such bases as gender, linguistic background and sexual orientation.
  • Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; for example, human rights activists, and
  • Groups associated by a former voluntary status, unalterable due to its historical permanence; this group is more of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person.

There have been a many rejections in cases of sexual orientation and gender identity in the past. Canada was one of the first countries to interpret the UN Convention to allow refugee claims to be made based on sexual orientation, recognizing the extreme human rights violations against sexual minorities around the world. Jorge Alberto Inaudi is believed to be the first person to be granted refugee status in Canada on April 4, 1992 based on fear of persecution because of his sexual orientation.

Mary Jone Causing Buchholtz
Immigration Program Student at Ashton College
under the tutelage of Jose Godoy Toku


References:

Wikipedia – Sexual Orientation
UNHCR guidance note on refugee claims relating to sexual orientation and gender identity
http://www.unhcr.org/refworld/docid/4f9eae7c2.html
http://www.unhcr.org/refworld/docid/3ae6b673c.html
LGBT – Rights in Canada
Homosexual gets refugee status in Canada
CIC website

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