Citation: 2019 RLLR 152
Tribunal: Refugee Protection Division
Date of Decision: November 5, 2019
Panel: Bonita Small
Counsel for the Claimant(s): Michael Murray Aytenfisu
Country: Mexico
RPD Number: VB9-04275
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000169-000177
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division in the claim of XXXX XXXX (AKA XXXX) XXXX XXXX XXXX, a citizen of Mexico.
[2] The claimant, who is a minor, claims refugee protection under s. 96 and 97(1)(a) and 97(1)b) Immigration and Refugee Protection Act (IRPA).1
[3] The panel has appointed XXXX XXXX XXXX as designated representative of the claimant. In rendering its reasons, the panel has considered and applied the Chairperson’s Guideline 3 on Child Refugee Claimants: Procedural and Evidentiary Issues and the Chairperson’ Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression
DETERMINATION
[4] I find that the claimant is a Convention Refugee pursuant to section 96 of the IRPA.
ALLEGATIONS
[5] The claimant is a XXXX XXXXyear-old transsexual male from a suburb of Mexico City in Mexico. His biological father is still in Mexico. His mother is now deceased, after being killed by the claimant’s mother’s partner at the time. The claimant now lives in Canada under the auspices of a guardian.
[6] The claimant calls himself a transsexual male. When asked why, the claimant explained that his goal is to transition into a male. However, since he hasn’t had any surgeries yet to start that process, he calls himself transsexual as opposed to transgender. He does identify as a male and in that regard, now calls himself XXXX, as opposed to his birthname, XXXX. He stated for the most part, his friends in school refer to him as XXXX, as does his guardian, XXXX and his sister, with whom he lives.
[7] The claimant testified that he started noticing that he didn’t want to be a woman when he was XXXX years old; he felt like “he was living his life inside a body where he didn’t belong.” He was confused because to be a female in Mexico was to act like a “princess” and to be “delicate like a woman”. However, he recalls that since he was four that he liked to play rough with everyone and that he didn’t like dressing the “way they wanted him to.”
[8] These thoughts started becoming more important to him and at age XXXX XXXX he started asking people at school to call him by a different name. Several of his friend’s mothers thought he was weird and complained to his mother. The claimant remembers his mother crying and asking him why he was causing her so many problems. The claimant also remembers being told not to come to school because of who he was.
[9] When asked about where he is in the process of transition, the claimant explained that he wears a “binder” to flatten his breasts, that his hair is cut short in the style of a man and that he wears male clothing. He wanted to start testosterone treatment and have breast surgery but the doctor he spoke about this told him he was too young.
[10] When asked about what he fears if he goes back to Mexico, the claimant stated that he would have many problems. He would have to use the name he was given at birth, XXXX XXXX and the people in Mexico “wouldn’t accept him because they’re close-minded.”
[11] He saw and heard of people who were transvestites that were either beaten or killed. He stated if he went back, he “couldn’t be himself” for fear of talking about what he wants to be and being killed.
ANALYSIS
Identity
[12] I find that identity has been proven on the balance of probabilities by the proffering of a passport in the name of the claimant, XXXX XXXX XXXX XXXX XXXX, who wishes to be called XXXX. (see Exhibit #1)
Credibility
[13] The determinative issue in this matter is whether or not the claimant has credibly demonstrated that he was born a female but is undergoing the process of transitioning to a male. On that issue, the panel has found there is more than enough evidence on the balance of probabilities to make that finding, based on the credible testimony of the claimant, corroborative statement documents and a document from the Gender Program stating that the claimant is on a waiting list. (Exhibit 5) The claimant stated that he went to see a doctor about having surgery which would help to transition him into a male, however he was told that he was too young. All of the above demonstrates the claimant’s clear intentions to transition despite being advised that it was not possible at this juncture due to his young age. As well, the panel has taken note that the claimant is on a waiting list to attend the Gender Program at the University of XXXX. It is reasonable to conclude, that by proceeding with such a project, that the claimant’s gender issues continue to dominate his life and further bolster his claim that he wishes to transition into a male.
[14] The panel has noted that the Minister provided written submissions in this claim on the issue of credibility. Although it is not clear from reviewing the submissions and the documents, it would appear that the issue of credibility is based on the fact that the claimant originally applied to Canada for a student visa, which was rejected. A few months later, he arrived in Canada and applied for refugee protection. The panel has not been provided with the reasons for the rejection of the student visa application.
[15] In arriving at a decision on credibility, the panel is unable to conclude that the minister’s submission negatively impacts the claimant’s credibility. The panel found the claimant to be credible in his testimony. He was consistent in his narrative and sincere in his beliefs. In particular, he described his past experiences identifying as a male, trying to express his gender identity as such and being met with a lack of support in his community; for example, having to miss school due to complaints made by his friends’ mothers regarding his request to be called a different name.
Nexus
[16] I find that the claimant has satisfied the panel that he meets one of the five grounds set out in the Convention Refugee definition by meeting the criterion of being a member of a particular social group, more specifically as a transsexual male with intent to transition into a transgender man.
Well-Founded Fear
[17] I find that the claimant has established that he has a well-founded fear of persecution.
[18] Country conditions from the National Documentation Package demonstrate that Mexico is taking some positive steps with respect to public tolerance of lesbian, gay, bisexual, transgender or questioning (LBBTQ) individuals.2
[19] However, according to a report by the transgender law centre in Cornell University Law School lesbian, gay, bisexual, and transgender (LGBT) clinic, it is noted that “it is important for adjudicators to be aware that sexual orientation and gender identity are distinct components of identity”.3
Gender identity describes “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.” Sexual orientation, on the other hand, is “each person’s capacity for… sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Transgender women are as diverse in their sexual orientations as non-transgender women. They may identify as straight, lesbian, bisexual, queer, or any other sexual orientation. When asylum decisions refer to transgender women as gay men with female sexual identities, it is important to be aware that this may be an inaccurate and therefore disrespectful way of describing the individual’s gender identity. This inaccuracy can have serious and harmful consequences as it may contribute to misunderstandings regarding the deadly dangerous country conditions for transgender women in Mexico, as described below.4
[20] As well, the same report’s Executive Summary states that despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:
Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women. rans–women continue to face beatings, rape, police harassment, torture and murder in Mexico.5
[21] It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.
[22] The claimant is still quite young. He encountered negative attitudes and even some discrimination while he was living in Mexico and while he was commencing his transition. Since coming to Canada he wears his hair very short, has changed his name, wears a “binder” to hide his female breasts and has inquired into having surgery to complete the transition. It is clear to the panel that the claimant is sincere in his desire to transition. I find that the country conditions demonstrate that the claimant would face a serious possibility of persecution if he were to return to Mexico and continue with the transition that he has begun. Notably, this is not a situation where the claimant would be specifically targeted by his family if he returned; in fact, he quite frankly stated that his family which includes his grandmother and even his father to a certain extent, have expressed support for the claimant’s gender transition.
[23] I therefore find that the claimant would have a forward-facing serious possibility of persecution if he were to return to Mexico as a transgendered woman.
STATE PROTECTION
[24] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence that state protection is inadequate. I find that the claimant has done so in this case.
[25] The report referred to earlier from the Cornell University Law School states the following as it pertains to protections in Mexico for Transgender people:
As described earlier, transgender women have limited formal legal protections in Mexico against discrimination and hate crimes. Only Mexico City has an antidiscrimination law that explicitly protects against gender identity discrimination. Other protections that exist exclusively in Mexico City include name changes, legal recognition of gender changes, and specialized healthcare for transgender people. Transgender women continue to experience pervasive discrimination in public and in their private lives. Even a representative of CONAPRED stated that “tolerance towards groups such as homosexuals is still ‘practically the same’ even after the State [Mexico] recognized their rights.” The 2013 U.S. State Department Human Rights Report on Mexico stated that “discrimination based on sexual orientation and gender identity was prevalent[.]” It also noted that “the government did not always investigate and punish those complicit in abuses.” Transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes. When the police do get involved, they frequently minimize the crime and mischaracterize it. For example, in violent murder cases the police usually determine that the cases are “crimes of passion” instead of hate crimes. Holding police and military abusers accountable is also difficult. The process for punishing the police and military is “extremely slow and inadequate.” Transgender women avoid reporting police abuse out of fear of police retaliation against them or their family members. Further, human rights commissions tend to be anti-LGBT and will often disregard complaints by transgender women. Transgender women cannot depend on inadequate and ineffective laws penalizing hate crimes to protect their rights.
[26] The same report referred to above also references a case of a transgender woman fleeing persecution and torture. The report finds that the court’s decision to grant asylum to the transgender woman was explicit in acknowledging that laws recognizing same-sex marriage do little to protect a transgender woman from discrimination, harassment and violent attacks in daily life in Mexico.6
[27] I find based on the objective evidence referred to above demonstrates inadequate protection to transgendered persons and therefore rebuts the presumption of state protection
Internal Flight Alternative (IFA)
[28] For an IFA to be exist, the panel must be satisfied on a balance of probabilities that (1) the claimant would not face a serious possibility of persecution in that location and (2) that conditions in that location are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.
[29] Given the panel’s previous analysis of the objective evidence, which indicates that the problems faced by those in the claimant’s situation are widespread and tied to pervasive negative societal attitudes about the claimant’s particular social group, I find that the claimant would face a serious possibility of persecution throughout Mexico. Therefore, I find that an IFA does not exist for the claimant.
CONCLUSION
[30] Based on these considerations I conclude that the claimant is a Convention refugee and I accept his claim.
(signed) “Bonita Small”
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.
3 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.
4 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.
5 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 5.
6 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.