2024 RLLR 20
Citation: 2024 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: January 25, 2024
Panel: Roderick Flynn
Counsel for the Claimant(s): N/A
Country: United States of America
RPD Number: TC3-19196
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim for refugee protection made by XXXX XXXX, a citizen of the United States of America (“the United States”) (hereinafter referred to as “the claimant” or “CW”) who is claiming protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
[2] The claimant elected to proceed on a self-represented basis at the hearing. The hearing of this claim was originally scheduled to proceed before me on August 18, 2023, but was adjourned at the claimant’s request to allow the claimant the opportunity to obtain legal advice prior to proceeding. At the outset of the hearing, I confirmed with the claimant that the claimant was comfortable proceeding with the hearing on a self-represented basis.
[3] In conducting the hearing and rendering these reasons, I have considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (“the Guideline”).
[4] The claimant self-identified as agender (no connection to any gender) and abrosexual (fluid sexual attraction dependent on multiple factors in which one’s sexual attraction(s) may change in different temporal or other contexts). The claimant indicated that as of the hearing date, the claimant identified as asexual, with little to no romantic attraction to anyone. The claimant testified that CW’s gender identity and sexual orientation are within the “queer” identity.
Preliminary Matter: Amendments to the Claim
[5] Prior to beginning the evidence, the claimant amended the Narrative attached to the Basis of Claim (“BOC”) form (“the Narrative”) to delete the statement on the first page of the Narrative saying, “I am XXXX and have XXXX as well, however it was ignored by my parents and remains undiagnosed by choice now”.
ALLEGATIONS
[6] The claimant is currently 20 years of age.[2] The claimant entered Canada from the United States in XXXX 2022.[3]
[7] The claimant’s allegations are set out in the BOC and attached Narrative[4]. In summary, the claimant fears continuing abuse from the claimant’s parents, indicating physical abuse up to age 12 or 13 and thereafter “mental and emotional abuse”.[5] Physical abuse “came in the form of hitting, ear pulls, being whipped by a belt, ruler or wooden stirring spoon”[6] as well as “…meals being withheld until the parent decided that a sufficient apology was given”.[7] “
[8] The claimant also detailed “mental and emotional abuse” from the claimant’s parents as follows:
“Mental and emotional abuse came in the forms of gaslighting, yelling and shouting, false accusations of misbehaviors, being yelled at for things that never happened and when pointing that out, gaslit into believing [that] the yelling did not happen. When talking to one parent about things like this, most of it was denied of having happened or the other parent heard everything and would start yelling, denying further what had happened and turning us as the one in the wrong and painting us as the bad guy”.[8]
[9] The claimant has detailed the following subjective fear of harm, mistreatment or threats in returning to the United States:
“If I returned, and my parents (or other family members) found me, the abuse would continue. As well as many states are no longer lgbtq+ safe”.[9]
[10] With respect to state protection, the claimant indicated that police or authorities had not been contacted because:
“Because I don’t trust the police. I don’t know any organizations in my country who can help. And adult peers don’t believe me.”[10]
[11] With respect to relocating in the United States, the claimant has written:
“I have plenty of extended family who wouldn’t hesitate to tell my parents where I was, even if I said no -who live all over the U.S. If I stayed there, it’s a bit easier for them to find me. And like previously stated, there are many non-LGBTQ friendly and cities. And I don’t know which are”.[11]
[12] In summary, the claimant is a citizen of the United States who fears a personalized risk in the United States from her parents; as well as discrimination rising to the level of persecution from the state and society in the United States on the grounds of being agender, abrosexual and queer.
DETERMINATION
[13] I find that the claimant is a Convention refugee under s.96 of the Act by reason of membership in a particular social group connected to trans gender identity.
ANALYSIS
Identity
[14] The claimant’s identity as a citizen of the United States has been established, on a balance of probabilities, by the copy of the claimant’s American passport which was entered into evidence at the hearing.[12] The claimant’s passport reflects the gender identity assigned to the claimant at birth: “F” (for female).
[15] The claimant’s oral evidence, which I accept as credible, is that the claimant does not identify with the gender identity assigned at birth but instead self-identifies as agender (i.e., the claimant does not align with any gender).
[16] I find, on a balance of probabilities, that the claimant has provided credible oral evidence that the gender which was assigned to the claimant at birth does not align with the claimant’s own identification of gender identity.
[17] In my view, the claimant’s gender identity falls under the umbrella of “trans” as defined (as follows) in the Guideline:
“Trans: An umbrella concept that refers to any individual whose gender identity or gender expression differs from their sex as perceived or assigned at birth. This concept includes, but is not limited to: individuals who have made bodily changes using surgical, medical or other means, or who plan to make bodily changes to align their sex characteristics with their gender identity; individuals whose gender identity does not align with their sex as perceived or assigned at birth but who have no wish to change their physiology; people who identify as having multiple genders or as not having a gender; individuals whose gender identity changes or is fluid; or people with any other gender identity that is not in line with socially accepted norms in a particular cultural environment. of expected behaviours based on gender. Gender identity is different from sexual orientation, and a trans individual may self-identify as heterosexual, gay, lesbian, bisexual, asexual, and/or queer.”. [emphasis added].
[18] I make this finding this finding because little objective information is before me, including in the National Documentation Package for the United States[13] (“the NDP”) which speaks to the more focused gender identity indicated by the claimant of ‘agender”. By contrast, I find that there is abundant and compelling evidence before me about the treatment of trans individuals in the United States (the more general and umbrella term which I find encompasses the claimant’s identity of agender in accordance with the definition from the Guideline quoted above), particularly in the NDP.
Nexus
[19] The claimant’s allegations support a nexus to the enumerated Convention ground of membership in a particular social group of trans individuals in the United States.
[20] I have therefore assessed this claim under section 96.
Credibility
[21] A claimant’s testimony is presumed to be truthful absent evidence-based reasons to doubt its authenticity[14]. Key factors in the evaluation are the consistency and coherence of testimony and the presence or absence of any unexplained material inconsistencies within or with statements made throughout the record. In this context, I have considered the potential difficulties that a claimant might encounter in testifying, including the impact of trauma, cultural and social factors, age, education, and the unfamiliarity and the high-stakes nature of the refugee proceedings.
[22] The claimant is a 20-year-old from the United States. The claimant lived in the United States with the claimant’s birth parents and siblings before leaving the family and coming to Canada in XXXX 2022 and claiming refugee protection.[15]
[23] In oral evidence at the hearing, the claimant testified that the claimant is the oldest among 5 siblings ranging from 9 to 18 years of age who live in the United States. The claimant described being subject to “abuse” by mother (R) and father (J) (collectively, “the AOP”). While this alleged abuse was never reported or investigated by authorities, the claimant described physical abuse occurred during the claimant’s childhood and “mental abuse” throughout the time with the claimant’s parents including “gaslighting” and withholding foods and meals. The claimant detailed neglect by these agents of persecution, including failing to investigate ear infections or arrange for vaccinations. While the claimant reported independence in activities of daily living, the claimant also endorsed some limitations in “moving around”, a tendency to overeat and collapsing due to respiratory illness. The claimant is under the ongoing care of a nurse practitioner.
[24] Asked to specify what mistreatment the claimant received from the AOP, the claimant described being “gaslit” and physically abused by J, and medically neglected (hardly ever being taken to the doctor for such conditions as ear infections and bronchitis/respiratory symptoms). The physical abuse described included slaps in the face, pulling of ears; and on one occasion when the claimant was 11 being hit with a belt (causing a bruise on the claimant’s leg). The claimant testified that meals were sometimes withheld when the high academic standards set by the AOP were not met (with the claimant and siblings sometime being sent to be with no or little dinner 2-3 times/month). Physical abuse last occurred when the claimant was 11-13 years old.
[25] The claimant described injuries as a result of the abuse being a bruise on her leg; as well as mild depression and bad anxiety.
[26] The claimant described the following risks upon a return to the United States from the AOP:
· The AOP would not accept the claimant’s queer identity as they are homophobic and transphobic;
· The AOP would abuse the claimant again and punish the claimant for leaving;
· If the AOP discovered where the claimant lives; the AOP would talk to the claimant and try to get the claimant back in their lives;
· A continuing relationship with the AOP would not be healthy for the claimant because the AOP are narcissists who do not care about the claimant;
· Despite an expected “nice guy act”, the AOP would end up hurting the claimant, particularly in that they support conservative Republican ideologies and would report the claimant to authorities if they discovered the claimant is queer;
· The claimant would be at risk of suicide or gun violence from American mass shootings.
[27] The claimant also described being “agender” (feeling no connection to any gender) and as “abrosexual” (one’s sexual preference is fluid). Per that fluidity, the claimant described currently feeling asexual with little or no sexual attraction. The claimant continued that this sexual preference is appropriately described as “queer”. In this respect, the claimant outlined fearing a return to the United to face anti-LGBTQ laws in certain states; as well as some federal and municipal enactments. The claimant described a disrespectful culture in the United States for LGBTQ people.
[28] When asked to describe any mistreatment experienced because of gender identity and sexual orientation, the claimant described that the claimant was not able to fully explore the religious tradition the claimant was born into based upon its binary approach to gender. Further, the claimant outlined that no disclosure was ever made to the AOP, as that would have provided an opportunity to further disrespect and target the claimant. The claimant testified that the AOP would not understand asexuality.
[29] On the risk faced by the claimant in the United States based upon gender identity and sexual orientation, the claimant indicated that the claimant had received threats online on social media based upon gender identity and sexual orientation, taunting that the claimant should “burn alive”.
[30] The claimant continued that if the claimant returned to the United States, some states still implement “conversion therapy”, noting that in at least 30 dates it is either less safe or dangerous to be queer. The claimant acknowledged that some states were more such as California and Oregon might be more LGTQ friendly but noted that in these states, the cost of medical insurance is expensive; and they feature a high cost of living. By contrast, the claimant detailed that in Canada, the claimant has a safe place to live, in a city with relevant support groups where the claimant can access “gender affirming [health] care” from the nurse practitioner currently being seen. The claimant testified about great personal concern particularly about accessing health care and employment in the United States.
[31] The claimant testified that the claimant never sought state protection, including the assistance from police in connection with the mistreatment received from the AOP; and the claimant was not aware that any contact had been made with state agencies by others.
Post-Hearing Submissions/Evidence on Persecution/Forward-Facing Risk
· The claimant was provided the opportunity to provide post-hearing submissions/evidence. I have considered these submissions which included the following submissions/points[16]:
· If certain candidates are elected to be president in 2024, nowhere in the United States will be safe; remaining in Canada, the claimant will remain out of reach of the United States government and be safe “…for more than just a few months”;
· Staying in Canada ensures that the claimant’s life is not in danger;
· The claimant contends that health care is not accessible in certain anti-trans states and the claimant cannot afford to live in states which are LGBTQ friendly, jeopardizing her ongoing and long-term health;
· Compassion and humanity should inform the decision in this refugee claim as areas in United States which are not homophobic/transphobic await “…the next conservative to take control” as mayor, governor; vice-president or president;
· Conservative politicians, such as Florida’s Ron De Santis, are abundant in the United States and openly support both homophobic and transphobic legislation, policies and practices;
· At least 22 states in the United States have laws/policies which restrict healthcare for trans youth;
· Research supports the risk faced by trans youth and their vulnerability to depression and suicide as well as numerous other negative consequences such as victimization and bullying.
Credibility Analysis
[32] I find that the claimant’s oral evidence concerning what is faced from the AOP in the United States falls far short of standard of “persecution” within the meaning of s.96 of the Act. As the Supreme Court of Canada expressed in Canada (Attorney General) v. Ward[17], “persecution” means “sustained or systematic violation of basic human rights which demonstrates a failure of state protection.”[18] The claimant has outlined a dysfunctional family situation in which the claimant alleges long-term mistreatment by the AOP. While I do not doubt the claimant’s sincerity in providing this testimony, I find, on a balance of probabilities, that the treatment received from the AOP is not elevated to the level of “persecution” under the Act to require surrogate international protection from Canada under s.96 of the Act. Similarly, I am not satisfied that the claimant’s evidence concerning the AOP’s treatment of the claimant discloses a credible forward-facing risk of torture, a risk to the claimant’s life or a risk of cruel and unusual treatment in the United States on a balance of probabilities. In my assessment, the claimant has outlined a pattern of unfortunate and perhaps regrettable parenting decisions by the AOP which in their totality, do not, in my view, situate the claimant as a person in need of protection within the meaning of s.97(1) of the Act.
[33] However, I have also considered the claimant’s evidence concerning the claimant’s gender identity as agender. As noted above, the claimant’s evidence that the claimant does not identify with the gender assigned at birth of female falls under the umbrella of a “trans” gender identity as defined in the Guideline. In this respect, I have no reasonable basis to doubt the claimant’s consistent oral evidence that the claimant does not connect to the gender identity assigned at birth of female. Further, I have no reasonable grounds to doubt the claimant’s evidence that the claimant has a subjective fear of persecution in the United States based upon this trans identity, including accessing health care, and employment. In this respect, in addition to oral evidence about being subject to verbal and/or physical attack based on gender identity, the claimant has provided detailed oral evidence and submissions concerning the systemic unavailability of services, public facilities and opportunities in the United States connected to a trans identity. The claimant has further submitted that the conservative movements in the United States -including elected, or prospectively elected politicians at every level of government including the American Presidency, are currently championing legislative and other enactments which block or impose limits on trans rights and access to services.
[34] On all the evidence, I find, on a balance of probabilities, that the claimant has expressed a credible subjective fear of persecution – i.e., a sustained or systematic violation of the claimant’s human rights – in the United States connected to a trans identity.
Objective Evidence
[35] A fulsome and thoughtful review of the objective evidence concerning the treatment and vulnerabilities of trans individuals in the United States was conducted by the Refugee Appeal Division (“the RAD”) in 2022, in its decision in Re: X[19]. In that decision, the RAD summarized starkly:
“It is clear from the country conditions evidence [from the United States] that trans individuals face considerable threats of physical, psychological, and social harm.”[20]
[36] In summary, upon review of the objective evidence from the NDP, the RAD commented:
“The evidence, therefore, shows three things. Firstly, that the trans community is at heightened risk of experiencing violence, harassment, and discrimination that could, in certain circumstances, be considered persecutory. Secondly, that across most of the U.S., trans people are excluded from protections that would enforce their right to equal treatment in public settings and in accessing services available to the public. This exclusion from protection makes the trans community vulnerable to further assaults on their rights. Thirdly, the evidence shows that the trans community is already facing active and increasing efforts to deny and restrict their rights to live freely, openly, and as equals in public spaces, even though there is broad public support for equal treatment of trans individuals.”[21]
[37] I am not bound by the RAD decision in this matter, which turns on very different facts. Nonetheless, I find the RAD decision is persuasive in this context, particularly in its comprehensive review of the objective evidence and its summary of contemporary challenges faced by trans individuals in America.
[38] My own review of the objective evidence from the NDP from the United States concurs in the RAD’s conclusions in this respect and I adopt them as my own on the facts of this case. The updated NDP for the United States (put in place since the RAD’s decision above) does detail some attempts by the current President and his administration to provide further protection to the LGBTQ community (and to roll back some regressions under the previous administration) as follows:
“The administration of United States President Joe Biden and the US Congress took positive steps on human rights by championing the rights of women and lesbian, gay, bisexual, transgender, and intersex (LGBTI) people that had been weakened under the previous administration, committing to racial equity, and taking action to address the Covid-19 pandemic and its harmful economic impacts.
However, the United States continues to fail to fulfill its human rights commitments…[22]
[39] The conditions for trans individuals in the United States, as eloquently summarized above by the RAD, do not appear to be significantly improved as reflected in the updated NDP in the period of a year after the RAD decision. This lack of progress seems particularly stark with respect to the vulnerability of trans individuals to physical attacks, with the current NDP recording over 35 trans individuals being shot to death -or killed by other violent means – in the country in 2022[23]. Further, the updated NDP documents that recently, the U.S. Senate failed to pass The Equality Act, which would have expressly prohibited discrimination on the grounds of sexual orientation and gender identity under various federal civil rights laws[24].
[40] In oral evidence at the hearing, the claimant expressed particular concern about being homeless and being unable to access adequate health care. The objective evidence clearly reflects that these types of challenges reflect the experiences by trans individuals in general in the United States, and in the two areas (employment and health care) specified by the claimant. Item 6.2 reflects a comprehensive survey of transgender Americans.[25] Generally, the results documented reflect that respondent reported high levels of discrimination in everyday life[26] with 62% reporting discrimination.[27] The severe impact of this discrimination is also reflected in this article, with 66% reporting that the discrimination which they experienced moderately or significantly affected their psychological well-being, with nearly half of the respondents reporting moderate or significant physical impacts.[28] The claimant’s subjective fear concerning accessing or retaining a job is also supported in this article with 53% reporting that their trans identity moderately or significantly affected their capacity to be hired in a job and nearly half of respondents indicating that discrimination based upon their gender identity had a significant impart on their ability to retain employment.[29] Further, Item 6.2 also highlights that the most significant challenge for transgender citizens of the United States is accessing responsive health care.[30] This article reports as follows:
“Transgender individuals faced unique obstacles to accessing health care including 1 in 3 who had to teach their doctor about transgender individuals in order to receive appropriate care.”[31]
[41] Based upon this objective evidence, I am satisfied that the claimant’s subjective fear of persecution based upon a trans gender identity is well-founded.
State Protection
[42] The Supreme Court of Canada in Ward explained that in refugee law, it is presumed that states can protect their citizens: absent a complete breakdown in the state apparatus.[32]
[43] However, the law also makes clear that, in each case, a claimant may rebut the presumption of state protection with clear and convincing evidence of the state’s inability – or unwillingness to protect them.[33] As the Federal Court reiterated in 2023[34], the weight of the burden on a claimant in attempting to rebut the presumption of state protection is great in claims for protection against democratic countries such as the United States:
“…a claimant coming from a democratic country will have a heavy burden when attempting to show that [they] should not have been required to exhaust all of the recourses available to [them] domestically before claiming refugee status”. That is, “it is more difficult in some cases than others to rebut the presumption”. This is because the quality of the evidence required to rebut the presumption will be raised in proportion with the degree to democracy of a state (Shaka v Canada (Citizenship and Immigration), 2012 F.C. 325 at p.8.” [35]
[44] However, the law has also made clear that despite the strength of the presumption of state protection in democratic countries – and the evidence required to rebut this presumption, the Federal Court has also repeatedly confirmed that “…democracy alone does not ensure effective state protection.”[36] The Federal Court has held that in claims for protection involving democratic countries, the Refugee Protection Division (“RPD) and the Refugee Appeal Division (RAD) are not relieved of their duty to carefully review the evidence concerning state protection.”[37]
[45] The standard against which state protection is to be assessed is adequacy: a state must be able to provide adequate state protection to a claimant. The standard applied is adequacy and not perfection.[38] and a state is not required to provide protection for all citizens at all times.[39] A state protection analysis is not to be conducted in a vacuum, but rather, it must consider all the circumstances, including the nature of the persecution or threat faced by the claimant.[40]
Test for Adequacy of State Protection and Burden to Rebut
[46] As recently reiterated by the Federal Court[41], the test for assessing the adequacy of state protection is at the operational level, which requires an assessment of a) the efforts made by the state to protect; b) the actual results of the state efforts.[42] Country condition evidence is relevant in making this assessment[43]. As noted above, the burden of overcoming the presumption of state protection is on the claimant.[44] In discharging this burden, a claimant cannot simply rely on personal belief that state protection will not be forthcoming[45] but must provide clear and convincing evidence of their state’s inability or unwillingness to protect.[46]
[47] As noted in Section 8.6 of the Guideline, my state protection analysis must focus on the personal circumstances of the claimant, in conjunction with a fact-based analysis of the operational adequacy and effectiveness of the state protection in the country of reference (the United States).[47]
Personal Circumstances of the Claimant
[48] The claimant is a young trans person who is estranged from immediate and extended family. The evidence reveals that the claimant has few reliable or close contacts in the United States, leading the claimant to journey to Canada to pursue a partnership with a Canadian citizen (which the claimant testified has now ended as a relationship and continued as a friendship).
[49] The claimant concedes that no contact was made with state authorities to seek protection. However, the claimant, in written submissions, has provided a fulsome overview of the anti-LGBTQ initiatives extant in the United States and a summary of the impact on trans people generally and the claimant specifically.
Efforts to Protect by the State
[50] The essence of the claimant’s evidence and argument to rebut the presumption of state protection is that the existing protections to the trans community are inadequate, and the existing ones are constantly vulnerable to replacement and repeal by conservative transphobic elements in the country (through ongoing identifiable legislative and policy initiatives at all levels of government).
[51] The claimant’s evidence to rebut the presumption of state protection starts with the description that for a trans person, life in the United States is one of constant “high alert”[48] because of the inconsistency of protection with the prospect of conservative governments at every level of lawmaking.
[52] The claimant summarized as follows:
“Because living in a less homophobic/transphobic state [in the United States], that’s no life at all. Especially waiting for the next conservative to take control, to become mayor or governor or vice president or even president. Living a life of fear, on high alert again, in constant fight or flight is not a way to live.”[49]
[53] The claimant has continued by pointing out the wave of homophobic and transphobic enactments by public officials and entities in the United States, noting that there are “…over 650 anti LGBTQ bills/laws/legislation.”[50] This wave of anti-LGBTQ enactments at particularly the state and municipal levels is supported by objective evidence from the NDP, including Item 6.1.[51] A snapshot of unprogressive initiatives from the United States is documented in that article, including ongoing initiatives over bathroom access, saying:
“Opponents of LGBT equality have seized on some people’s unfamiliarity with transgender people and coupled that with people’s concerns about safety in places like restrooms (concerns that have nothing to do with transgender people). They’ve linked these unrelated issues and created a toxic attack that is used to make it virtually impossible for transgender people to go about their daily lives by passing so-called “bathroom ban” laws–state and local laws and explicitly single out transgender people and restrict their access to restrooms.”[52]
[54] The RAD decision concurs with the claimant’s evidence that “…the rights of trans individuals [in the United States] are under political and cultural assault”.[53] The RAD decision summarizes one aspect of the high-level dialogue in the United States on the rights of trans people as follows:
“Public accommodations laws, which protect the rights of trans people to access services and spaces open to the public do not exist throughout the US. While nearly half of US states have some protections in place, the degree of protection offered varies considerably. Progressive steps to expand anti-discrimination protections for trans individuals have been considerably hampered in recent years by movements for religious exemptions to anti-discrimination laws, attempts to repeal anti-discrimination laws, bathroom bans prohibiting trans people from using bathrooms that accord with their gender identity, and the passage of state laws prohibiting the passage or enforcement of local, municipal or county non-discrimination laws.”[54]
Actual Results of State Efforts to Protect
[55] As urged by the case law, my state protection analysis must be practical: focusing on the efforts of the state to protect the claimant; and the actual results of the measures taken. In this case, the claimant did not seek protection from police, noting fear of police and the overwhelming anti-trans sentiments shown in multiple public enactments and initiatives. In this respect, I find the language of the RAD decision to be compelling here:
“It is clear from the country conditions evidence that trans individuals face considerable threats of physical, psychological, and social harm. “Transgender people experience particularly high rates of discrimination in public places.” Trans women of colour are especially targeted for violent hate crimes and killings. According to the Williams Institute, transgender people are “over four times more likely than cisgender people to experience violent victimization, including rape, sexual assault, and aggravated or simple assault.” The evidence shows that 2021 was the deadliest year for trans people in the US since 2013 and that 96 percent of those murdered in 2021 were trans women or trans feminine people”. The extent of the violence that trans people face is also virtually unknown to the public. One report indicates that, despite 2021 being the deadliest year on record for trans people, transphobic violence received less than 45 minutes of collective reporting time by TV news stations during that year.
Moreover, “about half of all violent victimizations were not reported to police.” This is consistent with the SOGIESC Guidelines, which note that “under-reporting may be more pronounced for individuals who face marginalization.” Country documents show that legal services and courts are among the essential services where trans people have reported experiences of discrimination.
[56] As noted in the RAD decision (in commenting on the objective evidence), the “actual results” of state protections in the United States have left trans people with considerable vulnerability for physical, psychological and social harm. The objective evidence from the NDP provides insight on why these conditions of insecurity persist, particularly in the respect where the claimant has expressed the greatest fear: lacking accommodation and being rendered homeless. As noted in Item 6.1:
“Despite the fact that LGBT people experience discrimination in public spaces like restaurants and on public transit and that the public supports nondiscrimination protections, currently there is no federal law that explicitly and broadly prohibits public accommodations discrimination on the basis of sexual orientation or gender identity.”[55]
[57] The same article continues:
“Laws protecting people from discrimination in public accommodations based on sexual orientation and gender identity exist in only 19 states and the District of Columbia. And there are no federal nondiscrimination protections in public accommodations for any of these characteristics. As a result, just over half of lesbian, gay, bisexual, and transgender (LGBT) people in the United States live in a state where businesses could refuse to serve them because of who they are.”[56]
[58] Having reviewed the claimant’s submissions in this respect as well as the objective evidence (including the compelling summary documented in the RAD decision), I find that it is undisputable that there are ongoing tangible efforts in the United States, at every level of government and within some of the judiciary, to protect the rights of trans people (and an ongoing public dialogue about progressing those protections in the public sphere)[57]. However, it is also plain that there are also concerted and identifiable efforts, in many states and municipalities, to undermine these protections; all within a context where no federal protections exist to trans individuals in respect to many basic aspects of their lives (including securing accommodations). For me, the key to the analysis of the actual results of the state protection available to the claimant on return to the United States resides in the lack of systematic protection to trans individuals in the country, particularly insofar as currently “…there is no federal law that explicitly and broadly prohibits public accommodations discrimination on the basis of sexual orientation or gender identity.”[58] As summarized in the NDP, the day-to-day result for trans people is as follows:
“…[a] patchwork of nondiscrimination protections that mean that in the majority of states, people can be denied service at a restaurant, kicked out of a taxi cab, or denied access to a bathroom—just because of who they are or whom they love.”[59]
[59] As the Federal Court has made clear, state protection analyses are case-specific and must be made in the context of a claimant’s particular circumstances.[60] The claimant’s particular circumstances are that the claimant fears returning to the United States, at such a young age without substantial personal credentials or supports and being rendered homeless (and therefore more vulnerable to the many documented vulnerabilities of trans people). It is undeniable that some states in the United States provide some fundamental protections to trans people. It is also equally clear that some states do not; and no federal legislation exists to provide an overall umbrella of legal assurance to trans rights (with the failure of the U.S. Senate to pass the Equality Act providing federal protections on various grounds, including gender identity).[61]
[60] The question is, is a “patchwork” of protections to the claimant adequate? In the absence of a statutory or judicial definition of “adequate”, I shall use the dictionary definition of “…satisfactory or acceptable in quantity or quality”. I find, on a balance of probabilities that the quantity and quality of state protection to trans individuals, such as the claimant, to fully participate in public life in the United States is exactly as documented in the objective evidence, “patchwork”. The question for me becomes, on a forward-facing view, for this applicant, is “patchwork” adequate? I am not satisfied that it is on all the circumstances here: where the claimant is young, without a reliable support network (because of her estrangement from the AOP), and a very limited professional qualifications to make a living. Further, the facts before me show that these forward-facing conditions for the claimant are, on the evidence presented, connected, at least in part, to the claimant’s gender identity (and the lack of acceptance from the claimant’s American support network).
[61] On the facts of this case, I am not satisfied, on a balance of probabilities, that adequate state protection is available to this claimant in the United States.
Internal Flight Alternative
[62] It is well-settled law that the claimant does not require Canada’s protection if the claimant has an internal flight alternative (“IFA”) within their country of reference. However, for an IFA to be viable, on a balance of probabilities, the claimant must (1) not face a serious possibility of persecution in the IFA location; and (2) the IFA location must be objectively reasonable in his circumstances.
[63] On the totality of evidence before me, having reviewed the individual circumstances of the claimant, I find that, it is not reasonable for the claimant to relocate within the United States and therefore, irrespective of whether any of the proposed IFA locations within the United States is safe (Sacramento, California, Minneapolis, Minnesota or Seattle Washington), the IFA test here fails on Prong 2.
[64] As noted in the RAD Decision, only 7 states in the United States (none of which are California, Minnesota or Washington), provide protection against discrimination on the grounds of gender identity[62]. In this respect, the RAD remarked:
The LGBT Policy Spotlight report indicates that the majority of states do not offer broad protection against discrimination in public accommodations. The report breaks down the protections available in each of the states where anti-discrimination laws have been enacted and assesses whether the laws prohibit discrimination based on sexual orientation and gender identity, whether the law explicitly includes restaurants, hotels and similar businesses, and whether the law explicitly includes schools, public transportation and hospitals. Only seven states (Colorado, Delaware, Illinois, Maine, Nevada, New Jersey, and New York) provide protection on all of those grounds. The remainder of the [United States]—the vast majority—endorses by omission some form of discrimination on the basis of sexual orientation and gender identity. I find that, for trans individuals, this means that there are only seven US states where their rights are theoretically fully protected and where they have the greatest chance of living a free and dignified life.
[65] The RAD decision continued by reflecting upon the impact of the lack of protection to trans individuals on their daily living and full participation in public life:
The country documents show that fear and uncertainty around how one will be treated—whether entry, service, or use of bathroom facilities will be denied and whether they will be harassed—affects the way many trans individuals interact with the world and communities around them. These experiences push trans people out of public life by making it difficult or unsafe for them to do everyday things like go to stores, use public transportation, access healthcare and other essential services, or simply go to a restaurant to eat. [63]
[66] Given that none of the proposed IFA locations provide reasonable protections to trans individuals such as the claimant – and the RAD decision effectively summarizes how uncertain – and therefore unreasonable this lack of protection renders life for trans people, I am not satisfied that relocation to any of them is reasonable on all the evidence before me.
[67] In this respect, I am alive to the fact that the United States is a large democratic country, and the lack of legislative protection in just three suggested potential IFA cities does not necessarily, in and of itself, make the entire country (outside of North Carolina where the claimant lived) unreasonable as a potential relocation locale. That said, I note that, per the RAD decision, in assessing reasonableness, I must turn my mind to the particular circumstances of the claimant. In the RAD decision, in assessing the reasonableness of a proposed IFA in New York City (which the objective evidence identifies as being in one of the best states in the United States for trans individuals) (NYC),[64] the RAD concluded (in a trenchant analysis at para. 80-92) that notwithstanding the lack of discrimination rising to the level of persecution in NYC (and the existence of various legislative protections to trans individuals in that state) and the persistence of “transphobia as a nationwide problem”,[65] in consideration of that claimant’s personal circumstances (including a modest education and employment opportunities given that claimant’s economic standing, that claimant’s access to reliable housing, that claimant’s vulnerability to violence as a transgender person, and access to health care) when viewed collectively, NYC was not a reasonable IFA.
[68] In consideration of all the facts here, I make the same finding (referent to the proposed IFAs noted above), with respect to the claimant. The claimant is single, modestly educated and likely to face many, if not all, of the challenges faced by trans individuals attempting to relocate which are reviewed in the RAD decision. I find, on a balance of probabilities, that given the claimant’s lack of available support resources, the likelihood of exposure to homelessness (therefore increasing the claimant’s vulnerability to mistreatment and harassment experienced by trans people) would be increased.
[69] Given that I am not satisfied that, based upon the claimant’s current profile that the claimant could viably make a living while living independently, I find that it is not reasonable to return the claimant to live in any of the IFA cities in the United States.
[70] Accordingly, I am satisfied, on a balance of probabilities, that the claimant, on the particular facts before me, has no viable IFA.
CONCLUSION
[71] For the reasons given above, I find that the claimant faces a well-founded fear of persecution in the United States connected to gender identity without adequate state protection or a viable IFA in that country.
[72] Accordingly, I conclude, on a balance of probabilities, that the claimant is a Convention refugee under section 96 of the Act.
[73] This claim is therefore accepted.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27 (as amended).
[2] BOC, Exhibit 2, section 1(c).
[3] Ibid, section 2(e).
[4] BOC, Exhibit 2.
[5] Ibid, section 2(a).
[6] Ibid.
[7] Ibid.
[8] Ibid., section 2(a) and Narrative, p.1.
[9] Ibid, section 2(b).
[10] Ibid, section 2(c).
[11] Ibid, section 2(d).
[12] Exhibit 1, documentation from CBSA.
[13] Exhibit 3.
[14] Maldonado v. Canada (Minister of Citizenship and Immigration) [1980] 2. F.C. 302 (F.C.A.).
[15] Exhibit 2, BOC.
[16] Exhibit 7, Post-hearing submissions of Claimant.
[17] 1993 CanLII 105 (SCC) [1993] 2 SCR 689, 103 D.L.R (4th) 1 (“Ward”).
[18] Ibid.
[19] Re: X 2022 CanLII 138570 (Refugee Appeal Division) (“the RAD decision”).
[20] Ibid, para. 29.
[21] Ibid, para. 34.
[22] Exhibit 3, the NDP, Item 2.3, “United States World Report 2022: Events of 2021”, p.1.
[23] Ibid, Item 6.3, HRC Foundation, “Fatal Violence Against the Transgender and Gender Non-confirming Community in 2022”, p.1.
[24] Ibid, United States World Report “2022: Events of 2021”, p.8.
[25] Ibid, Item 6.2, Centre for American Progress: The State of the LGBTQ Community: A National Public Opinion Survey”.
[26] Ibid, p.7.
[27] Ibid, p.5.
[28] Ibid. p.9.
[29] Ibid, p.11.
[30] Ibid, p.18.
[31] Ibid, p. 4.
[32] Ibid, p.725.
[33] Ibid, p.724.
[34] Brzezinski v. Canada (Citizenship and Immigration), 2023 FC 936 (CanLII).
[35] Ibid, para. 23, quoting with approval Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at paragraph 57.
[36] Sow v Canada (Citizenship and Immigration), 2011 F.C. 646 at para. 11.
[37] A.B. v. Canada (Citizenship and Immigration) 2018 F.C. 237 at para. 22.
[38] Belle v. Canada (Citizenship and Immigration), 2023 FC 1276 (CanLII) at para. 24.
[39] Canada (Minister of Employment and Immigration v. Villafranca 1992 CanLII 8569 (Fed C.A.).
[40] Gonzalez-Torres v. Canada (Minister of Citizenship and Immigration) 2010 F.C. 234 at para. 37 (CanLII); Pintyi v. Canada (Citizenship and Immigration) 2021 F.C. 117 at para. 12.
[41] Pena v. Canada (Citizenship and Immigration) 2023 F.C. 180.
[42] Ibid, para. 17.
[43] Ibid, para. 23.
[44] Ibid, citing Asillani v. Canada (Immigration, Refugees and Citizenship) 2020 F.C. 645 at para. 26.
[45] Ibid, para. 16, citing with approval Ruszo v. Canada Citizenship and Immigration) 2013 F.C. 1004 at para. 33.
[46] Canada (Attorney General) v. Ward 1993 CanLII 105 (SCC).
[47] The Guideline, section 8.6.
[48] Exhibit 7, Claimant’s Post Hearing Submissions.
[49] Ibid, p.1.
[50] Ibid, p.2.
[51] The NDP, Item 6.1, LGBT Policy Spotlight, “Public Accommodations, Non-discrimination laws”.
[52] Ibid, p.15.
[53] Supra, note 19, para. 33.
[54] Ibid, para. 32.
[55] Supra, note 51, p.10.
[56] Ibid, p.7.
[57] Ibid, p.3.
[58] Ibid, p.10.
[59] Ibid., p.4.
[60] Lakatos v Canada (Immigration and Citizenship), 2018 F.C. 367 and A.B. v. Canada 2019 F.C. 1339 at para. 23.
[61] Supra, note 22.
[62] Supra, note 19, para. 70.
[63] Ibid, para. 91.
[64] Supra, note 51, p.11. (This reference documents that New York State provides protection covering sexual orientation and gender identity, which includes restaurants and hotels, schools, public transportation and hospitals.)
[65] Supra, note 19, para-80.