Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).1
[2] The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.2
DETERMINATION
[3] The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.
ALLEGATIONS
[4] The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.3 The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.
[5] The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in antibullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.
ANALYSIS
Identity/Country of Reference Mexico
[6] The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.4
Well-Founded Fear of Persecution
[7] The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.
[8] The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.5 She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially nonconforming gender identity.
[9] According the Repot on Human Rights Conditions of Transgender Women:
Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. 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 transgender women.6
Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.7
[10] Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.8 The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.9 Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.
[11] Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.
State Protection
[12] State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.
[13] In response to the growing public profile of sexual and gender minorities:
Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.10
[14] Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.11
[15] Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.12
[16] Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.
Internal Flight Alternative
[17] The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.
[18] The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.13
[19] Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.
CONCLUSION
[20] For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).
(signed) J. Schmalzbauer
June 17, 2021
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.
3 Exhibit 2.
4 Exhibit 1.
5 Exhibit 4.
6 National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.
7 National Documentation Package, Mexico, 30 April 2021, tab 6.3.
8 National Documentation Package, Mexico, 30 April 2021, tab 6.3.
9 National Documentation Package, Mexico, 30 April 2021, tab 6.3.
10 National Documentation Package, Mexico, 30 April 2021, tab 6.3.
11 National Documentation Package, Mexico, 30 April 2021, tab 6.3.
12 National Documentation Package, Mexico, 30 April 2021, tab 6.3.
13 National Documentation Package, Mexico, 30 April 2021, tab 6.3.