Canada’s Immigration and Refugee Board updates guidelines for LGBTQ2S+ claimants—but there’s more work to be done

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1/28/22

A queer man is turned away from a refugee claim because the term for his same-sex partner in his native language translates to “girlfriend”; a bisexual person loses their refugee claim because their understanding of bisexuality differs from Western definitions; a queer person seeking refugee status is asked to share his Grindr profile to verify his sexuality. Around the world, LGBTQ2S+ people face violence, discrimination and encarceration because of their sexual orientation or gender identity, and for many, Canada is a highly sought-after safe haven. But for those seeking refuge from a country with anti-LGBTQ2S+ legislation or powers, coming to Canada isn’t so simple. The Immigration and Refugee Board (IRB) is trying to change that. In late December 2021, the IRB updated its guidelines for assessing refugee claimants whose lives are threatened because of their sexual orientation, gender identity or expression. This update comes just a few years after the initial guidelines were introduced in 2017. That in itself is a meaningful step forward—particularly after years of complaints that refugee claims were being denied because adjudicators on the board questioned the veracity of claimants’ sexuality or gender identity, or because they felt that claimants could “pass” and live safely in their home country. But are the new guidelines enough? Janet Dench, executive director of the Canadian Council of Refugees, points out that guidelines often aren’t updated at all, so it’s noteworthy that the IRB did so, and so quickly after they were first introduced. But, Dench adds, institutional understandings of queerness and queer life remain rooted in antiquated ideas. “Despite the guidelines, there continued to be a lot of complaints about stereotypes, offensive language used and also the whole Western framework, the sense that we know what gays do,” she says. “If you’re here in Canada, you would presumably show your gayness by going down to the Gay Village and taking the first opportunity to do whatever we associate with gay life.” Based on the implementation plan for the updated guidelines, it appears the IRB is taking this criticism seriously. All 11 recommendations for updating the guidelines were adopted, and the IRB is in the process of updating terminology and definitions. In the past, the IRB has struggled to determine the veracity of someone’s claims that they are being persecuted based on their sexual orientation, mainly because not everyone defines themselves using the Western concepts common in Canada. “A big challenge is not necessarily stereotyping, but just an insensitivity towards the diversity of different sexual and gender identities,” says Nicholas Hersh, an immigration and refugee lawyer at Community Legal Services of Ottawa, who has provided training on LGBTQ2S+ issues to IRB members.

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