2024 RLLR 113

Citation: 2024 RLLR 113
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2024
Panel: Katherine Whitelock
Counsel for the Claimant(s): Erin V Simpson
Country: Germany
RPD Number: TC0-07234
Associated RPD Number(s): N/A
ATIP Number: A-2025-00611
ATIP Pages: 41–49

DECISION

[1] MEMBER: This is a decision in the claim of XXXX who I will call the claimant, (inaudible) a citizen of Germany. She claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, or IRPA. I have considered and applied Chairperson’s Guideline 4, gender considerations in proceedings before the Immigration and Refugee Board, as well as Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics in my analysis and reasons.

DETERMINATION

[2] I find the claimant is a Convention refugee.

ALLEGATIONS

[3] The facts and events alleged in support of the claim are set out in the claimant’s Basis of Claim form and attached narrative at Exhibit 2 as amended by Exhibit 6. No significant details were changed in these amendments, rather they represent primarily reformatting and clear English composition. To summarize, the claimant is a transgender woman. She was physically and psychologically abused by her family from a young age for exhibiting behaviors that they, her father who I will call HF in particular, found insufficiently masculine.

[4] Believing that her unacceptably non-gender conforming behaviour and interests were a symptom of mental illness, what she described as being a problem child, her parents sought out doctors who would diagnose her with XXXX, or XXXX and XXXX at age nine (9). For the next several years whenever the claimant exhibited any inclination towards “feminine interests” or attempts to refuse taking the medications she was forcibly prescribed, HF would physically abuse her. She attempted to express her identity to her parents with limited information available to her, only discovering the concept of being transgender once having access to her own electronic devices.

[5] Following that epiphany, the claimant again repeatedly tried to engage her family in explaining her identity and seeking their approval, only to be met with further mockery and physical violence from HF and her brothers. When the topic could no longer be avoided, HF escalated his abuse, locking her in the basement or out of the house for lengthy periods. HF also encouraged and supported the claimant’s brother who I will call MF, in making death threats against her and menacing her with knives.

[6] At the age of 13, seeking to fix his “abnormal” child, HF forcibly admitted the claimant to a XXXX hospital where she was confined and medicated against her will. She was diagnosed with XXXX but primarily prescribed a battery of other psychoactive drugs and forced to participate in behavioral testing and experimentation, all of which she related to be extremely traumatic. Following release from the hospital, the claimant was briefly able to seek out hormone therapy and began medically transitioning, but her parents then forced her to attend a distant heavily religious boarding school for “children with behavioral issues”, XXXX

[7] Many of her classmates had developmental disabilities, and because of asserting her gender as a girl, she was frequently treated as though similarly impaired. The school was hostile to her trans identity, disregarded her accommodation needs, restricted her movements, forced her to work in the cafeteria, tormented her with punitively repetitive schoolwork far below her abilities, and intentionally placed her with transphobic peers. The claimant was regularly physically and sexually assaulted by other students, with faculty blaming her for acting “abnormal”.

[8] The claimant fled XXXX without authorisation in 2017 and was able to intermittently rely on family support while evading HF’s hostility, but faced pervasive transphobia and violent threats on the street while attempting to simply live her life as a woman. Due to fear of her father and brother’s threat and violence, widespread societal transphobia, and dismissive unhelpful interactions with authorities that left her with no confidence in state protection, the claimant eventually fled to the Caribbean island of Saint Martin and she was able to largely live “stealth”, that is to say “passing” for a cisgender woman.

[9] However, she was also persistently sexually harassed and repeatedly sexually assaulted, including by a local who then upon discovering she was trans, robbed her and went about publicly outing her in the community, causing the claimant to fear for her life. Panicking, she attempted to perform self surgery on her genitals and sought medical care after succeeding in accomplishing only a XXXX and losing a great deal of blood. After being released from the hospital in Saint Martin, the claimant fled for Canada in XXXX 2019.

[10] Upon entry she falsely asserted not to fear returning to Germany. However still fearful of her parents and the abuses she suffered in attempting transition in Germany, she raised a claim for protection in XXXX 2020. Subsequent to this, she learned from a social services caseworker in Toronto that her mother had reported her as a missing person, and now also fears being endangered by that development as well.

Identity

[11] I find the claimant’s personal identity and nationality are credibly established on a balance of probabilities based on a copy of her passport at Exhibit 1 and her testimony.

Nexus

[12] As noted above, the claimant’s narrative recounts she has faced extensive abuse from her family, medical professionals, state institutions, and the public at large for attempting to live openly as a transgender woman in Germany in the context of being diagnosed with XXXX and XXXX as a child. I am satisfied this scenario would constitute a nexus to the Convention ground of being a member of multiple particular social groups on the basis of gender identity and expression, and actual or perceived neurodivergence. That is to say, being a transgender person and a woman and a person diagnosed with widely stigmatized or pathologized conditions and alleging persecution on all three (3) basis intersectionally (sic). I have therefore assessed the allegations under sections 96 and 97(1)(b) of the IRPA.

Credibility

[13] Per the case of Maldonado, when a claimant swears certain facts are true, this creates a presumption they are true unless there is a valid reason to doubt their truthfulness. As noted above, I have considered an applied Guideline 4 — excuse me, on gender considerations in proceedings before the IRB, which offers guidance with respect to the application of a trauma informed approach to proceedings. The guidelines note that an individual who has experienced trauma may have certain difficulties in presenting their case, including recalling specific times, dates, and locations, recounting events in chronological order, or even recalling certain events in full.

[14] Guideline 9 similarly advises that some types of corroborating evidence of allegations may not be reasonably available in cases involving SOGIESC identity due to a claimant’s circumstances of concealing or minimizing their identity because of perceived stigma or risk of harm. I will say first that I found the claimant’s testimony to be generally candid and responsive to my questioning and consistent with her narrative and other evidence on the record. On the balance of probabilities I consider her to be a credible witness as to the personal experience as she related, her identity as a trans woman, and her particular experience of neurodivergence and her needs, such as a great deal of environmental sensitivity to noise.

[15] The latter she testified is why she is settled in a more rural region of Ontario after residing initially in the Toronto area following her entry to Canada. More broadly in testimony, she emphasized the sheer pervasive volume of discrimination and harassment she faced in Germany on the basis of her gender identity. The claimant has also submitted a number of personal documents at Exhibit 5. These include a great deal of Canadian medical documents attesting to accessing transition-related health care since her arrival in Canada, as well as XXXX reports from a Canadian XXXX arising from a 2022 assessment, and one (1) from a German XXXX based on her 2018 treatment of the claimant.

[16] Setting aside the extensive and detailed documentation of for instance the claimant’s HRT regimen and pursuit (inaudible) surgery, as I have already accepted her gender identity as credible, I turn to the XXXX reports. The reported life history is consistent with the claimant’s narrative as amended. They indicate she was indeed diagnosed with XXXX and XXXX as a child. I note too that she reported one (I) of her brothers has XXXX and the other is XXXX

[17] The XXXX also provides further details of the claimant’s interactions with state medical institutions in Germany, stating that although her mother attempted in some ways to support her, she was relentlessly failed by authorities and clinics which did not vote, stop, or “change the negative development in the family’, and resulted in the claimant having “deep distrust” in societal structures.

[18] However in testimony, she also added that in recent years her mother who she reported to be a public servant, has gone to great lengths to attempt to track her down, including creating email accounts in her name, thereby effectively attempting to engage in identity fraud to improperly obtain private and confidential information about the claimant’s current whereabouts.

[19] With regards to these documents, I am satisfied on the — balance of probabilities they credibly corroborate those reported details of the claimant’s life, and I have no — observed no features to cause me any particular concern with the genuineness or reliability of the evidence. On a balance probabilities I find it credibly established that the claimant is perceived to be neurodivergent due to her XXXX diagnosis, that she has been institutionalised in various ways by both her family and the state, and that she experienced a tremendous deal of punishment and coercive control from her family, the state, and German society at large as a result of her trans identity. As such I found it more likely than not that she is a– she has credibly established a well-founded subjective fear of persecution as a member of multiple particular social groups.

Objective Basis

[20] The National Documentation Package for Germany prepared by the research directorate is very limited in scope, but contains some useful information with regards to the claimant’s particular circumstances. Document 6.1 is the only item in the NDP, section 6 regarding sexual minorities is a 2020 annual review of the human rights situation of LGBTI people in Germany from the human rights organization ILGA Europe. It indicates that “hate crimes continue to be a serious issue”, with a recent federal hate crime law reform specifically omitting prohibitions against homophobia and transphobia.

[21] Trans health care is reported to be only covered by state mandated health insurance as a “last resort”, and regulations can (inaudible) pathologize trans people and contravene accepted medical standards of care. Similarly document 2.1, the US Department of State country report on human rights practices states that the LGBTQI+ community reported violent attacks in a “growing atmosphere of hostility”, often particularly directed at transgender individuals. Statistics released in May 2022 showed a 55 percent increase in such incidents reported to authorities, with activists alleging the true incidence rate is likely much higher.

[22] Hate crimes against trans people seem to be treated particularly lightly by authorities. In one (1) case, a trans man was singled out from a crowd and brutally murdered during a pride event in the city of Bielefeld, with police taking months to hesitantly charge a suspect with manslaughter and verbal assault. In another noted incident, a trans woman hairstylist was assaulted at her salon, which the attacker then vandalized. Police arrested and then immediately released the suspect.

[23] This document indicates also that while the law prohibits discrimination against persons with disabilities, NGOs disagreed about whether these were effectively enforced. Further, an estimated 1.3 million adults were living under conservatorship laws with restricted rights to self-determination. Despite 2023 reforms, the law continues to permit involuntary medical treatment, such as the claimant experienced as an adolescent and forcibly institutionalized by her family and compliant authorities.

[24] I next return to Chairpersons Guideline 9. It reflects much the country condition information found in the NOP, such as observing that trans individuals may be particularly vulnerable to systemic discrimination due to non-conformity with socially acceptable norms, may face elevated risks of physical and sexual violence, as well as discrimination in employment, access to health care and medical treatment, and receipt of social services.

[25] It is noted as well that “reliable, relevant and up to date country condition information on SOGIESC individuals in some countries can be scarce, incomplete, or general in nature”, which may be more pronounced for certain individuals or groups. The example given is of a scenario where information focuses on gay men, omitting specific information about lesbians, trans, and intersex individuals. This may be further exacerbated for those who are (inaudible) marginalized, such as racial minorities or persons with disabilities.

[26] The guideline also emphasizes the mere legality of SOGIESC identity or the existence of laws, programs, or other government actions designed to improve the situation of SOGIESC individuals as a country needs to be “carefully assessed to determine whether state protection is adequate at the operational level’. Citing the 2009 case of AB (ph), it is necessary to examine the degree of actual implementation, effectiveness, and durability of such ameliorative actions. “In light of how state actors and general society continue to treat SOGIESC individuals”, before continuing — concluding that state protection is genuinely available.

[27] The guideline indicates as well that any kind of forcible medical treatment, including forced institutionalization, psychotherapy, and medication, in order to “correct” a SOGIESC identity violates an individual’s security of the person and is flatly persecutory. SOGIESC individuals may also face different forms of harassment and discrimination that cumulatively amount to persecution, such as restrictions on access to employment, education, healthcare, housing, access to social services, and being their target of repeated acts of intimidation.

[28] Finally I refer to the claimant’s country and subject matter of disclosure — sorry, personal and country subject matter disclosure at Exhibits 5 and 7. First I turn to the 2022 brief of ILGA Europe’s annual review of LGBTI human rights in Germany. That is to say, an up to date copy of the 2020 document that is still in 2024, the sole document in section six (6) of the Germany NDP. I note in passing that I am profoundly disappointed in the IRB Research Directorate for failing to even provide this update, given that the current version of the NDP was last revised on August 31st 2023.

[29] Nonetheless, this report suggests that conditions have remained constant or worsened. Violent hate crimes continue to escalate with a number of cited incidents targeting transwomen specifically. Transphobia in the media has continued, with major media outlets arguing that children are “indoctrinated” into “gender ideology”, resulting in death threats and hate mobs targeting one (1) trans academic, forcing her to flee her home.

[30] Government actions reform the hate crimes law known previously to include sexual orientation and “gender specific” motives as aggravating factors only, was reported to be in the draft stage as of mid-2022. A federal government commissioner for the acceptance of sexual and gender diversity was appointed by the government with great fanfare, although limited information is provided about the efficacy of the action plans supposedly implemented by this official.

[31] Other items at Exhibit 7 about conditions in Germany included Deutsche Welle article from 2022 about rising homophobic and transphobic violence, which unfortunately are conflated together in a manner that can make it difficult to determine specific conditions for trans people as a distinct population, as Guideline 9 notes at section 8.5.10.

[32] A Human Rights Watch report about events in Germany throughout 2023 notes a large increase in far-right motivated demonstrations, as well as a rise in attacks against migrants, Jews, Muslims, Sinti, Roma, and lesbian, gay, bisexual, and transgender people, often constituting hate crimes.

[33] Well, another Deutsche Welle article from just one (1) month ago, January 2024, discusses how Germany’s trans community is forced to battle, “right wing falsehoods”. A half hearted government initiative to allow for “self-determination”, that is to say, significantly lowering barriers for trans people to access changing personal information such as names and gender markers and government records, has instead fuelled vicious “hate speech and disinformation from the far-right and conservative groups, seeking to leverage the issue to further their own agendas.”

[34] In testimony the claimant described the effectively impossible situation of the current state of affairs (inaudible) on a practical level, where demands for so-called real life experience before being able to change her name and identity documents, inevitably drew attention to her for harassment, discrimination, and violence on the basis of her gender identity and expression. In any event, the former article also reports that transphobic disinformation is a “key component of far-right ideology”. This is an observation of the Office For the Protection of the German Constitution, a domestic intelligence service with regards to extremist political parties such as the AfD, currently polling as the second most popular in the country.

[35] I next turn to a number of articles concerning neuro divergence. The first is an academic paper titled “Experiences at the intersection of transgender and neurodivergent identities”, from the University of Southern Maine. Definitions of neural divergence vary significantly, but are broadly accepted to include neurodevelopmental differences such as autism and ADHD, neurological conditions such as epilepsy and Tourette syndrome, and learning differences such as dyslexia.

[36] Among neurodiversity scholars, “the term has come to encompass a broader range of experiences, including those that have traditionally categorized as mental health conditions”, such as obsessive compulsive disorder and bipolar disorder. “Within the medical psychiatric community, neurodivergence is typically understood within a framework of disorder”, and treatment therefore focuses on attempting to render individuals “normal.”

[37] Disability scholars have criticized childhood and youth treatments in the case of autism for instance, for incorporating “violent aversive conditioning”, including electric shocks as punishment. With that context, this paper observes research has demonstrated that neurodivergent individuals are more likely than neurotypical individuals to have trans or “gender expansive” identities, but that those perceive — perceived as both are heavily pathologized with neurodivergence, particularly autism, frequently and incorrectly hypothesized as a “cause” of trans identity.

[38] Other cited research indicates this pathologization has resulted in significant disparities in access to gender affirming medical and mental health care, as medical providers pervasively discount and dismiss asserted trans identity as a “symptom of neuro divergence”, implicitly concluding that such individuals are delusional and should be denied access to care. As criteria for receiving certain forms of gender affirming care were focused heavily on “persistent” and “well-documented” were trans identity, or that “medical or mental health concerns” must be “well-controlled” before individuals are permitted access.

[39] Those who are neurodivergent or perceived to be so have a “particularly fraught” experience in this regard. Another academic article reported by the claimant published in the International Journal of Transgender Health in 2021, reports on barriers to accessing health care for trans individuals in Europe. A response to interview indicates that those from Germany felt more pressure to “convince” their providers that they required reserved care than those from other countries. In general, trans feminine individuals, those with lower income or more actual perceived mental health problems like the claimant, were found to experience greater barriers to care such as “extensive diagnostic procedures”, and trans feminine individuals reported lower social acceptance generally.

[40] Another 2019 article from the same journal found that autistic trans people in particular experienced extensive delays and denials of care owing to health care providers not understanding or believing their asserted intersectional identities and experiences.

[41] Finally a 2021 news article from Xtra Magazine discusses in somewhat less academic language “the emerging research on the connection between trans identities and neuro divergence”, reiterating several of the points reviewed in the academic articles provided, such as that trans and gender diverse people are according to another study, far more likely than cisgender individuals to be autistic, and that autistic trans people also often face “barriers to transition (inaudible) of professionals and relatives and others with power over their lives” because they are less likely to be believed about their lived experiences or trusted with agency and personal autonomy.

[42] Considering all of the evidence on record about the experiences of trans people in Germany, the experiences of trans people who are or are perceived to be neurodivergent generally and the claimant’s personal history, I draw the following inferences. It is unquestionably part of her medical and child welfare record in Germany that she was diagnosed with XXXX and institutionalized for what amounts to non-conformity in her childhood and adolescent behaviour and gender expression. Were she to return to Germany, I consider it more likely than not she would continue to be pathologized by medical providers in the state in this regard.

[43] It is even possible that in light of HF’s past efforts to coercively control her life and behaviour by demanding that authorities pathologize her, that she could be targeted for conservatorship or forced medical treatment as an adult, including depriving her of transition related care. This would as Guideline 9 indicates, be persecutory. Even if that scenario did not occur, it would remain more likely than not that — seriously possible that she would be arbitrarily denied or indefinitely deferred access to some or all kinds of transition related care due to her medical history. Given the evidence I have discussed above about barriers to care faced by trans people who are or are perceived to be neurodivergent.

[44] This is additionally in the context of the scant available NDP evidence reporting generally that trans health care is provided begrudgingly as a “last resort”, in a manner that fails to adhere to accepted medical standards. This too would be persecutory.

[45] Finally in light of the worsening violence and societal stigma reported in Germany against trans women in particular and taking into account Guideline 9 section 8.5.9, I find that — balance of probabilities the claimant has experienced cumulative discrimination and harassment that amounts to a serious possibility of persecution in Germany. This conclusion is supported by country conditions indicating that homophobic discrimination, harassment, and violence generally, and transphobic discrimination and harassment and violence specifically have risen sharply in the last several years.

[46] This is reflected also in the claimant’s account of the transphobic abuses she suffered from teachers, peers, and the public at large throughout the 2010s, and the manner in which she was effectively denied access to schooling due to her experiences. Indeed in testimony, the claimant reported that she felt living openly as a trans woman in Germany would inevitably cause her to be targeted for discrimination just as in her experience it already had.

[47] Per Guideline 9 section 8.5.1, it is well established in law that being compelled to conceal one’s SOGIESC identity can constitute a serious interference with fundamental human rights, and a claimant cannot be expected to conceal their SOGIESC identity as a means of avoiding persecution. Accordingly having identified three (3) separate grounds for this conclusion, I find that the claimant has credibly established a both subjectively and objectively well-founded fear of persecution in Germany.

State Protection/Internal Flight Alternative

[48] There is presumption states can protect their own citizens, except in the state of complete breakdown. That presumption can be rebutted with clear and convincing evidence of the state’s inability or unwillingness to protect the citizens. Per Guideline 9’s guidance regarding an absence of specific evidence relating to a particular claimant circumstances, the NDP leaves me with minimal information about state protection that could be ostensibly afforded to a trans woman who is or is perceived to be neurodivergent, such as the claimant.

[49] What little there is does not speak highly of police, who are reported to have been slow to act on and minimally investigate hate crimes against trans people. Indeed, the claimant’s own testimony indicated that she did not have confidence in authorities because of the way she was treated. Similarly where there are numerous mentions of high level government initiatives in support of “diversity” broadly, the situation at ground level would appear to indicate that homophobic and transphobic violence has escalated significantly, with the community having such low confidence in state protection that only 1/10th of all hate crimes are even reported to authorities.

[50] Again per the claimant’s own disclosure, these conditions appear only to have worsened since she left Germany, and her disclosure indicates further that even the very moderate reform measure of permitting self-determination has caused substantial backlash that has put trans people in danger. I further considered the claimant’s own reported experiences as per interactions with child welfare authorities, teachers and medical professionals largely supporting and endorsing HF’s lengthy campaign of physical psychological abuse. She did not feel that reporting these harms to police would have any effect, and I consider this to be a reasonable decision in her particular circumstances.

[51] Indeed she discussed in testimony how state authorities found that her living conditions as a child were unacceptable, being subjected to familial violence and abuse as she was, yet they offered no practical solution, which eventually resulted in her family sending her to the XXXX facility and then the cruelly abusive boarding school to resolve the “problem” of the claimant’s non-compliance with their expectations. I am confident also that being reported as a missing person to Canadian authorities, particularly in light of her testimony that her mother is a public servant and may have access to confidential information about her, is highly concerning. There is on a balance of probabilities as well a likelihood that authorities would have access to her medical records indicating her childhood diagnoses, which —

[52] My apologies, we were just briefly interrupted by someone trying to enter by the back door. I consider this to amount to a serious possibility that any particular German law enforcement agency is now predisposed to the premise that the claimant may be incompetent or mentally impaired due to her mother’s efforts, and should perhaps be returned to parental custody. Given all of this, I find the claimant would not have access to adequate or effective state protection in Germany on a balance of probabilities.

[53] With regards to internal flight alternative, I considered the Rasaratnam test would necessarily fail the first prong. The UNHCR’s own guideline nine (9) with regards to claims based on sexual orientation and gender identity disclosed by the claimant at Exhibit 7, emphasizes that “intolerance towards LGBTI individuals tends to exist countrywide in many situations.” I observe also that she did in fact attempt the self-help measure of an IFA prior to departing Germany, and found to be effectively impossible to evade the mistreatment she faced regardless of any other factors.

[54] Accordingly for the first two (2) grounds where I have identified an objectively well-founded fear of persecution above, it is logical that any in-person (inaudible) with authorities including immigration authorities upon re-entry to Germany or incidental contacts related to social services, would risk the same outcome.

[55] With regards to cumulative discrimination and harassment amounting to persecution in the claimant’s particular circumstances, I find this a situation that is pervasive throughout all of Germany. In all three (3) scenarios she would continue to face a serious possibility of persecution throughout the country.

CONCLUSION

[56] Based on the totality of the evidence before me, I find that in her particular circumstances the claimant has established a subjectively and objectively well-founded fear of persecution on a forward looking basis in Germany as a member of multiple intersecting particular social groups on the basis of gender identity, gender expression, actual or perceived neurodivergence. She would have no adequate state protection and no viable IFA. This claim is therefore accepted.

 

——— REASONS CONCLUDED ———