Citation: 2021 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2021
Panel: Lesley Stalker
Counsel for the Claimant(s): Kerry Molitor
RPD Number: VC1-05726
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000027-000033
 MEMBER: This is a Bench Decision in the claim for refugee protection of XXXX XXXX. You are a citizen of India and are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.
 Your claim is based on your sexual orientation. You fear persecution in India at the hands of your family, the extended Muslim community and the Indian society and police at large because of your sexual orientation or your sexual identity. Given the nature of your claim, I have considered and applied the IRB’s Chairperson’s Guideline 9 on sexual orientation and gender identity and expression, these are commonly known as the SOGIE guidelines.
 I find that you face a serious risk of persecution in India because of your sexual orientation. My reasons are as follows.
 I am satisfied as to your identity on the basis of the various identity documents that you have filed. These include your passport, your Aadhar or identity card, your voter card as well as other identity documents.
 As your claim is linked to your sexual identity, I find that the harm you fear has a nexus to the convention ground of particular social group. I therefore assessed your claim under Section 96 of the Act.
 The next question is whether I find your story to be credible and I do. You have provided a detailed Basis of Claim narrative which explained how you came to realize that you were not female, the sex which had been assigned to you at birth but rather were male. This created confusion for you as you tried to figure out who you were. Your cousins suggested that perhaps you were lesbian but you disagreed. You felt that you were a boy who was in a girl’s body. You could not turn to your parents or siblings for guidance or support. Your parents are devout Muslims and very conservative in their beliefs and in their cultural practices.
 You described… you described your father’s efforts to control your behavior with violence, hitting you with bricks, and even administering electric shocks to punish behaviors that he deemed were inappropriate. You were able to confide in one cousin in particular, XXXX (ph) and in the woman you loved, XXXX. You described the pain you experienced when XXXX was forced to marry another man. You could never publicly declare your love for her because you were in the eyes of society a woman.
 Moreover, your families would never have accepted the marriage as your family was Muslim and hers was Hindu. There were a number of times in the hearing when you became quite emotional. You described having to live a suffocated life and being trapped in a body that was not yours. You described your ongoing struggle with gender dysphoria and the pain of not being able to openly tell your family who you are. Your family expected you as a woman to behave in a certain way. They demanded that you wear the burqa as do you mother and your sisters. When you were 20 you told them that you were no longer willing to wear the burqa but this resulted in such conflict that at times you wore the burqa and took it off after leaving the home.
 Your BOC and testimony reflect strong Indian cultural values relating the interaction between individuals and their families. When I asked you why you did not walk away from your family when they refused to respect your choices, you said, where would I go. Your BOC describes an incident in which you remained in the doorstep of your home throughout the night after your father had locked you out. And when I asked you why you did not simply go elsewhere, you said that you did not dare expose your parents to the shame of the rift between you and them.
 When asked whether you know any transmen who were living openly in India, you said you know of two. You said their situation was somewhat unique. Their families are supportive of them and their assistance has enabled the men to survive openly. That is not the case for most transmen who did not have the support of their families. You provided a number of documents to corroborate your claim. These include, one, the detailed XXXX assessment from XXXX XXXX XXXX who diagnosed you as suffering from persistent XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX reports that you showed clinical degree of XXXX associated with memories of India and says that you are at risk of a complete XXXX collapse and suicide should you be required to return to India. Two, a letter from the ASAAP, a Toronto-based organization which assists LGBTQ persons from South Asia. This letter describes you as a valued member of their community and records your participation in various activities and services offered by the organization.
 Three, a letter from XXXX, the woman with whom you had a relationship in India. XXXX says that it was dangerous for her to write the letter but felt it important to do so. She said she has known you for close to 15 years. She described you as having “a husky voice and manly personality” and said that you have always been drawn to females in a sexual manner. She says that you told her that you were a transman, a concept which was completely unknown to her. She says that the concept of transsexuality is “new in India and is regarded as a crime, disease or abnormality.” She says that your family are very religious and traditional and could never accept that you are a man who needs to change his body.
 Four, a letter from your cousin XXXX (ph), who says that you were very close to each other from childhood on. XXXX (ph) says that even as a child you behaved as a boy. Neither of you was familiar with the concept of trans males at that time, but it was not a surprise to him when you told him you were in fact a boy trapped in a girl’s body. He also confirms that your family is extremely traditional and would never accept that you are not satisfied with the body that was given to you by god. And finally, you provided a letter from XXXX, a friend who is from a similar ethnic background and is like you transitioning from female to male here in Canada. Madura refers to your discussions about your gender dysphoria and your plans to begin your gender transition. I should not say to begin your gender transitions, your plans as to how you will transition.
 Given your credible testimony and the corroborative documents, I accept your evidence about your gender identity. I further accept that you were born into a conservative Muslim family and that your family and the community from which you come hold very traditional notions of sex and gender. I further find that your father in particular has used violence against you and other members of the family to punish behaviors that he deems unacceptable.
Well-Founded Fear of Persecution and Subjective Fear
 So having considered your evidence, I accept that you have a subjective fear of persecution including serious physical violence or death in India because of your sexual identity.
 The next question I must consider is whether there is an objective basis to your fear of harm, and after reviewing the country reports filed by your Counsel and the reports from the IRB’s National Documentation Package on India, I find there is. I will begin by referring to some of the changes in law affecting LGBTQ rights in India. In 2018, the Supreme Court of India decriminalized same-sex relationships and issued a judicial apology to the Indian LGBTQ community. This decision marked a significant step in the journey towards the full equality of LGBTQ persons.
 Of particular relevance to the case or situation of trans persons, in 2014, the Indian Supreme Court affirmed the link between gender identity and other human rights. The court emphasized that it was the individual not the State who should determine one’s gender. This decision was followed by another in 2015, when the Delhi High Court wrote, “a transgender person’s sense or experience of gender is integral to their core personality and sense of being, in so far as I understand the law everyone has a fundamental right to be recognized in their chosen gender.” The decisions of the Indian courts are encouraging and they herald a chance in a society that has had difficulty accepting unusual or different approaches to sexuality and gender. The court decisions have had some effect.
 The Immigration and Refugee Board Response to Information Request on the treatment of sexual minorities found at Tab 6.1 of the NDP says that after the decriminalization of same-sex sexual relations, there was a surge of pro-LGBTQ events and campaigns across the country. Most major cities saw Pride events taking place on a larger scale and an estimated 15000 people participated in the Queer Azadi Mumbai Pride Parade, and yet, LGBTQ persons continue to face severe discrimination and persecution on a day-to-day basis. The US Department of State report on Human Rights for 2020 found at Tab 2.1 of the NDP, says that LGBTI persons faced physical attacks, rape and blackmail as well as widespread societal discrimination and violence.
 The report also say that transgender persons continue to face difficulty obtaining medical treatment and face particular challenges with the police. The IRB Response to Information Request at Tab 6.1 of the NDP similarly reports that social rejection of queer sexuality remains widespread. The RIR refers to a 2018 report of the International Commission of Jurists, the ICJ, who wrote that the “transgender community is continually harassed, stigmatized and abused by the police, judges, their family, and society.” The ICJ report of 2019 says that LGBTI persons face extensive rights violations in relation to housing and within the home.
 This includes discrimination in the rental market, denial of housing, segregation into poorly resourced neighborhoods and violence and harassment from landlords, neighbors, friends, family and the police. The result is widespread homelessness. The ICJ also says that LGBTI persons, I am using the acronym the ICJ uses, says that the community faces discrimination and persecution at all stages of the employment process and this includes unequal access to educational opportunities, discrimination during recruitment and discriminatory and gender work conditions, Jack of job security and so forth. And this accords with your own account of having been fired by your employer when you revealed that you were a transman.
 The ICJ report emphasizes the vulnerability of trans persons who as a result of systemic discrimination are often affectively segregated into localities that Jack basic amenities even if they have the economic capacity to afford better housing. In 2019, India’s central government passed a law which in theory is supposed to protect the rights of trans persons. However, the law has been widely condemned by human rights organizations who note that the law denies to transgender people the right to identify their own gender or sex. Rather, trans persons must first apply for a “transgender certificate” from the district magistrate where they live. Once they have received this certificate they can then apply for a change in gender certificate.
 This second certificate, the gender certificate signals to authorities that they should change the person’s gender to male or female. The problem is that the second step requires the person to provide proof of surgery issued by a hospital official to the district magistrate for a second evaluation, and the issuing official must be satisfied with the correctness of such a certificate. This puts an extraordinary amount of power with one government office to arbitrate who qualifies to be recognized as who they say they are. This process also coerces people into medical procedures that they might not want including surgery, and this is a fundamental rights violation condemned by both Indian and international jurisprudence.
 There are other problems associated with the law including the fact that it guarantees trans persons the right to be free from discrimination but does not provide a definition of discrimination nor does it offer a mechanism by which trans person can enforce the rights which are on paper accorded to them. The Australian Department of Foreign Affairs and Trade report found at Tab 1.5 of the NDP says that LGBTI persons lack protection, have poor health and education (unintelligible 00:18:48) basic tolerance, abuse and violence on a day-to-day basis. The report also indicates that police still use nuisance laws to arrest gay men while there are some gay evenings or nights in a few bars, there are no truly safe spaces for gay and bisexual men.
 The articles that I have referred to come from the Board’s National Documentation Package on India. You and your Counsel have also provided many articles which document the widespread and deep hostility towards the LGBTQ community generally and towards transmen in particular. The articles say that transmen are a minority within a society which is already… within a sector of society which is already marginalized. These men, transmen are confined to the shadows of society. The articles also record the murder of a number of trans persons who were assassinated in public settings because of their gender nonconformity. So far the reports to which I referred speak about the attitudes of Indian society generally. You have said that you also fear the reaction of your own family. Of course, your family belonged to Indian society at large but they are a particular group within that society.
 They come from a conservative branch of Islam and would consider the notion of a trans man to be affront to themselves, to their community and to their god. When I asked you what your family would do if they learned that you are trans, you became very emotional. When you could speak you said you could not even think about it. You said that your dream is to be open with your family at some point but it is unclear how that will happen. The reports in the NDP confirm that honor-based violence within the family is still very common in India.
 It occurs throughout the country and is often unreported or is reported as suicides or accidents and here I am referring to the report in the NDP found at Tab 5.10. And so when I consider the evidence cumulatively, I find that if you were to attempt to live openly as a trans man in India, you would face violence, harassment and discrimination in virtually all aspects of your life, from housing to services to employment, and I find that the cumulative impact of this violence and discrimination amounts to persecution. Moreover, I am satisfied that you face a serious risk of honor-based violence or killing at the hands of your father and other members of the conservative Muslim community from which you come. I therefore find that you are at risk, you face a serious possibility of persecution in India on a basis of your sex and gender.
 The next question is whether you could seek State Protection against the persecution you fear and I find you cannot. As described above, the law changes articulated by the courts have failed to make significant inroads against the firmly entrenched negative perceptions of society towards those who come from diverse or nonconforming sexual orientation. The RIR at Tab 6.1 says that many police officers continue to hold outdated and negative views that affect their ability to provide adequate protection and the police are in fact known agents of persecution. Police still use nuisance laws to harass, manipulate and bribe the trans men whose family are not aware of the events or sexual identity and there are reports of police committing crimes against gay and trans men and the news and threats of arrests did discourage the victims from reporting the incident. Moreover, it is not uncommon for the police to refuse to investigate or even accept a complaint from an LGBTQ individual. In short, I find that you would not be able to avail yourselves of the police protection in the event that you were threatened, attacked or subject to other forms of violence or harm because of your sexual orientation and identity.
Internal Flight Alternative
 I have also considered whether you might have a viable Internal Flight Alternative in India. I find you do not. Anti-LGBTQ attitudes are deeply entrenched across the country. The discrimination appears to be Jess severe in major cities and yet social contempt for members of the LGBTQ community is prevalent throughout India and I find on a balance of probabilities that if you were to live openly as a trans man as is your right, you would face severe problems in finding housing and employment, both of which are essential to survival and as noted above, it appears to be possible for some members of sexual minorities to survive if they have the support of family and independent means but that is not your situation. And I therefore find that you would not have a viable IFA.
 Based on the totality of the evidence before me, I find you are a Convention Refugee. I therefore accept your claim.
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