Shifting Landscapes: Legal Justifications for Exceptional Immigration and Refugee Policies for Vulnerable Transgender Americans and Foreign Nationals Arriving from the United States of America Who Are Impacted by the Safe Third Country Agreement

The word biological actually has nothing to do with gender or even an original state of being. It just means pertaining to living matter. But some people use the word biological to position trans and gender non-confirming people as artificial and everyone else as natural. This is part of a larger system of using science as a rhetorical strategy for a normative goal…this is not about science, it’s about power.

– Alok Vaid-Menon, Beyond the Gender Binary [Emphasis Added]¹

Introduction

The Ontario Human Rights Commission and TransCareBC explain that transgender (“trans”)  is an “umbrella term.”² The word ‘trans’ describes “a wide range of people whose gender or gender expression differ from their assigned sex or the societal and cultural expectations of their assigned sex.”³ This paper will argue that the United States of America (“USA”) is not a safe country for trans individuals and that there are legal justifications for exceptional policies for those seeking refuge in Canada.

With certain exceptions⁴ – such as those individuals ineligible to make a claim under the Canada-United States Safe Third Country Agreement (“STCA”)⁵– it is possible to make a refugee claim at a port of entry  (“inland refugee claim”) or from outside Canada (“refugee resettlement”).⁶ Given that homosexuality is still illegal in 64 countries worldwide,⁷ and trans individuals continue to face widespread discrimination and transphobic violence around the world, a pressing concern for many asylum seekers is persecution based on their sexual orientation, gender identity, gender expression, and sex characteristics (“SOGIESC”).⁸ Many SOGIESC individuals face violence, discrimination, legal persecution and death in their home countries. This reality leads them to seek asylum in safer countries like Canada, where the struggle for LGBTQ+ equality rights⁹ reached a pivotal milestone with the legalization of same-sex marriage in 2005¹⁰ and where crucial gender-affirming care (social, physical and health supports that affirms a persons’ gender identity) for trans and gender-diverse youth and adults is safe and more accessible.¹¹ In fact, Canada’s human rights legal framework aims to provide clear legal protections for SOGIESC people.¹²

Following the 2015 landmark decision in Obergefell v. Hodges,¹³ the United States of America also legalized same-sex marriage across the country.¹⁴ However, the political, legal and social landscape in the USA has shifted immensely over the past decade, including the recent concerning news that the United States Supreme Court has been formally asked to overturn the Obergefell decision.¹⁵ The American Civil Liberties Union (“ACLU”) notably tracked 533 harmful bills against the LGBTQ2S+ community in 2024.¹⁶

With the start of Donald Trump’s second presidential term in January 2025, one of his administration’s first official acts was to sign an Executive Order declaring that the USA will only recognize two “biological” sexes, male and female, as part of a broader “restoring sanity agenda.”¹⁷ This polarizing move has had profoundly harmful implications for trans individuals and the broader LGBTQ2S+ community in the USA. It is clear that many trans individuals will not be safe during the Trump administration and are already seeking refuge in Canada, however, they may face obstacles for the reasons discussed in greater detail below.

This paper will argue that in order to uphold its commitments to the vulnerable LGBTQ2S+ community domestically and abroad, Canada should implement exceptional immigration and refugee policies to assist trans individuals impacted by the shifting political and legal landscape in the USA, specifically:

1. In order for an inland refugee claim to succeed, a claimant must demonstrate a lack of state protection and safe internal flight alternatives (“IFA”).¹⁸ Canada has historically denied refugee claims from American citizens since the USA has been deemed a “safe third country”, by citing safe IFAs (states and cities) in the USA. However, recent country conditions evidence may support refugee claims by trans Americans and indicates that there are no safe IFAs for trans Americans. In light of this reality, it is recommended the IRB creates an exceptional policy, building on existing policies, to support Board Members assessing inland refugee claims of trans Americans;
2. The STCA between Canada and the USA prohibits the majority of people crossing into Canada at land border crossings via the USA from claiming refugee protection in Canada.¹⁹ People attempting to enter Canada from the USA along the land border will be returned to the USA unless they meet one of the exceptions under the STCA.²⁰ Canada notably expanded the STCA across the entire land border of Canada in March 2023.²¹ As a result, trans foreign nationals previously residing in the USA who may wish to seek refuge in Canada, will be unable to do so unless they meet one of the current exceptions under the STCA. Following the Supreme Court of Canada (“SCC)’s 2023 decision in Canadian Council for Refugees v. Canada,²² the constitutional validity of the designation of the United States as a safe third country was upheld in that it was found to meet the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). However, the Court remitted the section 15 Charter infringement assessment to the Federal Court and it has yet to be considered. Given recent country conditions in the USA, using a section 15 lens, an exception under the STCA is warranted on the basis that s. 159.3 of the Immigration and Refugee Protection Act (“IRPA”) has adverse impacts on trans individuals.

I. Background: Canada’s Inland Refugee Determination System

Canada’s refugee determination system is complex. For the purposes of this paper, our discussion will be limited to the inland refugee claim process and will not discuss the overseas refugee resettlement process. However, it is noteworthy that since 2019, the Government of Canada, in co-operation with the Rainbow Refugee Society, established the Rainbow Refugee Assistance Partnership to assist with the private resettlement of LGBTQ+ refugees.²³ In 2024, the program was extended until 2029, demonstrating Canada’s ongoing commitment to supporting LGBTQ+ refugees seeking safety.²⁴

As mentioned above, it is possible to make an “inland” refugee claim at a port of entry and from within Canada. If the Canada Border Services Agency or Immigration, Refugees and Citizenship Canada officer determines that an individual is eligible to make a refugee claim, they will refer the claim to the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada (“IRB”) – Canada’s largest independent administrative tribunal.²⁵  RPD Board Members are tasked with determining whether an inland claimant is a Convention refugee²⁶ under Section 96 of the Immigration and Refugee Protection Act (“IRPA”) through the process of an oral hearing, in accordance with the Refugee Protection Division Rules.²⁷ Refugee claimants must show they have a “well-founded fear of persecution” in their country of origin or former country of habitual residence under one or more of five grounds: race, nationality, religion, membership in a particular social group and/or political opinion.²⁸ Credibility is a key issue in the refugee determination process.²⁹

Following the 1993 Supreme Court of Canada decision in R. v. Ward, Canada started accepting sexual orientation as a possible ground for refugee protection claims under membership in a particular social group.³⁰ However, refugee law scholars have demonstrated how these claimants continue to face a unique set of challenges in the refugee determination process (i.e. credibility assessments, trauma, internalized homophobia).³¹ Recognizing these challenges, in May 2017, the IRB released guidelines for refugee claim determinations regarding SOGIE individuals, Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression and Sex Characteristics (“Guideline 9”), which will be discussed further in the final section of this paper.³²

II. The Current Situation: A (More) Dangerous World for Trans Individuals in the USA

Shortly after entering office for his second presidential term, Donald Trump issued several harmful and discriminatory Executive Orders (“EO”). An EO is a presidential directive that impacts USA federal government agencies and operations. On January 20, 2025, Mr. Trump issued EO “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,”³³ which contains derogatory language that targets the LGBTQ2S+ community and particularly trans people. The EO also rescinds previous EOs by former President Joe Biden, which offered crucial protections and recognitions to trans people.³⁴

The following excerpt from “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” is illustrative of Mr. Trump’s position and intention for a regressive political, legal and social shift in the USA:

Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept.

Accordingly, my Administration will defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.³⁵ 

GLAAD, a leading LGBTQ+ advocacy non-profit organization, has been monitoring Mr. Trump’s record with the LGBTQ+ community since before his presidency and has accounted for 352 attacks on LGBTQ+ people to date.³⁶ Human Rights Watch has also reported on the recent, growing trend of human rights violations against LGBTQ+ communities in the USA. ³⁷ The rights of trans individuals in particular have been increasingly under attack and, in some cases, erased since Mr. Trump’s first term as president in 2018.³⁸ Many of these notable changes are discussed below:

A. LGBTQ+ Book Bans and Impacts on Early Childhood and Youth Education

Human Rights Watch reports that states and school districts across the USA have instituted bans on books addressing gender, sexuality and race in schools and public libraries.³⁹ PEN America, an organization seeking to protect free expression in the USA and across the world, reported that total book bans increased during the 2023-2024 school year, with 39% of banned books involving LGBTQ+ issues.⁴⁰

In an EO dated January 28, 2025, titled “Ending Radical Indoctrination in K-12 Schooling,” Mr. Trump requires federal agencies to cease funding for schools using what he defines as “discriminatory equity ideology” and “gender ideology.”⁴¹ Concerningly, the EO also calls for legal enforcement against teachers and school officials who violate related laws.⁴²

B. Limited Access to Gender-Affirming Care for Youths

The Government of Canada explains that gender-affirming care helps to support gender expression and may include social, legal, medical transition or a combination of these options.⁴³ The 2022 U.S. Transgender Survey reported significantly better health and life satisfaction for respondents who had socially and medically transitioned.⁴⁴ In addition, the American Medical Association has publicly opposed state legislation preventing “medically necessary” gender-affirming care for youths.⁴⁵ However, as of June 2023, 19 states had laws that restricted gender affirming care,⁴⁶and 25 states had such laws as of March 2025.⁴⁷

A June 2025 report by Human Rights Watch (“HRW”) titled “They’re Ruining People’s Lives” explores the harmful impacts of the bans on gender-affirming care for trans youth in the USA. HRW reports there has been a “federal assault” on the rights of trans people with a “wave of legislation” since 2021 targeting transgender health care. In particular, HRW explains the EO issued on January 28, 2025⁴⁸ has “disrupted healthcare access for over 100,000 transgender youth and imposed significant geographic, financial and emotional burdens on their families.”⁴⁹

A recent Human Rights Campaign (“HRC”) report indicated that as of July 2025, 40.1% or 120,400 trans youth (aged 13-17) are living in the 27 states that have passed gender-affirming care bans.⁵⁰ HRC provides the following important context:

In a coordinated push led by national anti-LGBTQ+ hate groups, legislators across the country have overridden the recommendations of the American medical establishment and introduced hundreds of bills that target transgender, non-binary and gender-expansive youth’s access to age-appropriate, medically necessary care.

This attack on healthcare is relentless and constantly shifting.⁵¹

Mr. Trump’s administration has shown a consistent disregard for science-based evidence, and HRC’s concerns seem even more legitimate given the recent firing of Centers for Disease Control and Prevention (“CDC”) director Susan Monarez, less than one month after she was sworn in as director for failing to “align with” Mr. Trump’s political agenda.⁵²

C. Defunding Gender-Affirming Care for Federal Employees

In addition to restricting access to gender-affirming care for youths, on August 15, 2025, the USA Office of Personnel Management, the largest employer health benefits program for the USA federal government, announced it would no longer cover gender-affirming care for adults in 2026.⁵³ According to the Williams Institute, a leading LGBTQ+ law and policy think tank, approximately 14,000 trans federal employees will be affected by the change.⁵⁴ The announcement also notes that “counseling services for possible or diagnosed gender dysphoria must still be covered” and those services may include faith-based counseling,⁵⁵ otherwise known as “conversion therapy.”

The United States Supreme Court announced in March 2025 that it would hear the case of Chiles v Salazar,⁵⁶ which seeks to challenge a Colorado state law protecting youth under 18 years old from “conversion therapy.”⁵⁷ According to the Trevor Project,⁵⁸ conversion therapy “refers to a range of dangerous and discredited practices aimed at changing one’s sexual orientation or gender identity or expression.”⁵⁹ In a 2020 “Statement on Conversion Therapy” published in the Journal of Forensic and Legal Medicine, the Independent Forensic Expert Group concluded the following:

Conversion therapy has no medical or scientific validity. The practice is ineffective, inherently repressive, and is likely to cause individuals significant or severe physical and mental pain and suffering with long-term harmful effects. It is our opinion that conversion therapy constitutes cruel, inhuman, or degrading treatment when it is conducted forcibly or without an individual's consent and may amount to torture depending on the circumstances, namely the severity of physical and mental.⁶⁰

The International Rehabilitation Council for Torture Victims released a report in 2020 which cited this conclusion.⁶¹ In a more recent report released in July 2025, the Trevor Project suggests the practice is still widespread in the USA⁶² and identified over 1,300 active practitioners of “conversion therapy” across 48 states and the District of Columbia as of 2023.⁶³  In a friend of the court brief in Chiles v. Salazar, Advocates for Trans Equality spoke to the “unique and disproportionate” harms faced by the trans community by the practice of “conversion therapy.”⁶⁴ This perspective is especially important in light of a 2024 study that showed trans people are more likely to be put through conversion therapy,⁶⁵ and the 2022 U.S. Transgender Survey found that 12% of respondents experienced the practice.⁶⁶

D. Restricting USA Passport Markers to Female and Male

EO “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” seeks to further discriminate against trans individuals by directing the Department of State and Department of Homeland Security to restrict passport gender markers to male and female according to an individual’s assigned sex at birth. The policy is currently being challenged in Orr v. Trump.⁶⁷

E. Forcing Trans Women Into Men’s Prisons

EO “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” also orders that trans women should not be permitted in women’s prisons.⁶⁸  Despite court rulings against the policy, some reports indicate that some trans women have been transferred to men’s prison facilities.⁶⁹

F. Banning Trans Military Members

In an EO dated January 27, 2025, titled “Prioritizing Military Excellence and Readiness,” Mr. Trump clearly demonstrated his position and sought to further discriminate against trans people by banning them from the American military:

Recently, however, the Armed Forces have been afflicted with radical gender ideology to appease activists unconcerned with the requirements of military service like physical and mental health, selflessness, and unit cohesion.  Longstanding Department of Defense (DoD) policy (DoD Instruction (DoDI) 6130.03) provides that it is the policy of the DoD to ensure that service members are “[f]ree of medical conditions or physical defects that may reasonably be expected to require excessive time lost from duty for necessary treatment or hospitalization.”  As a result, many mental and physical health conditions are incompatible with active duty, from conditions that require substantial medication or medical treatment to bipolar and related disorders, eating disorders, suicidality, and prior psychiatric hospitalization.

Consistent with the military mission and longstanding DoD policy, expressing a false “gender identity” divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.  Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.  A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.⁷⁰

G. Banning Trans Women from Sports

In an EO dated February 5, 2025, titled “Keeping Men Out of Women’s Sports,” Mr. Trump issued a directive which seeks to prevent trans women from participating in women’s sports.⁷¹ In addition, the EO indicates that all federal funds from educational programs which support trans women and girls will be eliminated.

H. Anti-Trans Bathroom Legislation

A rise in anti-trans bathroom laws in the USA is also concerning. There are currently 6 states (Montana, Wyoming, South Dakota, Utah, Arkansas and Florida) banning trans people from using bathrooms and facilities (i.e. changeroom) consistent with their gender identity in all government-owned buildings.⁷² There are 8 states (Idaho, North Dakota, Oklahoma, Mississippi, Alabama, Ohio, West Virginia, Louisiana) banning trans people from using bathrooms and facilities consistent with their gender identity in K-12 schools and some government-owned buildings and 5 states (Iowa, Kentucky, Tennessee, South Carolina, Virginia) banning trans people from using bathrooms and facilities (i.e. changeroom) consistent with their gender identity in K-12 schools.

In 2023, Florida passed an anti-trans bathroom law involving criminal trespass in certain situations where refusing to leave a restroom or changing facility that does not align with an individual’s sex assigned at birth in government-owned or leased buildings.⁷³ In March 2025, 20-year-old trans university student, Marcy Rheintgen was arrested after protesting these bathroom laws.⁷⁴ She faced a misdemeanour trespassing charge punishable by up to 60 days in jail.⁷⁵ Utah also makes it a criminal offense, in certain circumstances, for trans people to use the bathroom that is consistent with their gender identity.

In addition to all of the troubling examples above, the recent appeal filed by the former Kentucky county clerk, Kim Davis,⁷⁶ in an effort to overturn the Obergefell decision legalizing same-sex marriage is deeply troubling with regards to the current and future state of affairs for the LGBTQ2S+ community in the USA.

III. Lack of State Protection and the IFA Problem: Unique Challenges for Trans Americans Making Inland Refugee Claims

According to recent data published by the IRB, more Americans applied for refugee status in the first half of 2025 than all of 2024.⁷⁷  In addition, Americans currently rank second for asylum claims at the Canada-US border in 2025. ⁷⁸ For further context, as of September 2025, Rainbow Railroad, a Canadian non-profit organization helping LGBTQ+ asylum seekers around the world, reported a 760% increase in calls from people living in the USA in 2025 seeking assistance.⁷⁹ However, it is not common for Americans to pursue or succeed with refugee claims in Canada as a result of the legal concepts of state protection and IFA.

According to the IRB, the question of whether an IFA exists is “an integral part of the Convention Refugee definition.”⁸⁰ IFA “arises when a claimant who, despite meeting all of the elements of the Convention refugee definition in their home area of the country nevertheless is not a Convention refugee because that person has an IFA elsewhere in that country.⁸¹ The IRB relies on the two-pronged test from Rasaratnam⁸² and Thirunavukkarasu⁸³ to assess whether a claimant has an IFA. Importantly, if an individual must remain in hiding, there is no safe IFA⁸⁴ and a claimant cannot be required to hide their sexual orientation in order to be safe in an IFA.⁸⁵  Given the size of the USA, it can be challenging to demonstrate no safe IFA, and given the designation of the USA as a safe country, it can be challenging to rebut the presumption of state protection.⁸⁶

Despite these challenges, Canadian immigration and refugee lawyers have reported a noticeable increase in trans Americans seeking pathways to leave the USA and seek refuge in Canada.⁸⁷ It is also possible that a trans American who has been living in Canada could have developed/develop a fear of return to the USA (sur place claim).⁸⁸ 

In a recent article focused on the application of the concept of IFAs in Canada, Pia Zambelli determines that IRB decision makers have expanded the concept beyond what is recommended by the United Nations High Commissioner for Refugees (“UNHCR”).⁸⁹ Zambelli traces the origins of IFA in international and domestic law to provide crucial context to the potential problem. First, Zambelli points to the refugee definition from the 1951 Refugee Convention and notes that it has been “pointed out many times” that there is no mention of internal relocation.⁹⁰ The article also references the theory of Jessica Shultz, that the origins of IFA can be found in Dutch and German asylum cases from the late 1970s.⁹¹ Following these cases, UNHCR released the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1976 Protocol relating to the Status of Refugees in 1979, indicating that an asylum seeker would not be excluded from refugee status simply because they could have sought refuge in another part of the same country under unreasonable conditions.⁹² The creation of a two-part IFA test in Germany’s Federal Constitutional Court ushered in the “modern era of IFA jurisprudence.”⁹³ Zambelli suggests that the UNHCR provided further caution in response to this evolution regarding IFA in 1999 and stated it “cannot agree that international relocation amounts to a ‘principle’ of refugee law” and “caution has to be exercised where this notion is involved, not least because of its potential incompatibility with the right to seek and enjoy asylum from persecution.”⁹⁴ Zambelli’s argument that Canada has expanded IFA beyond UNHCR’s recommendation⁹⁵ is compelling and raises questions about how this “integral” legal concept creates particular challenges for American refugee claimants.

IV. The STCA Problem: Unique Challenges Facing Trans Foreign Nationals Arriving from the USA

On December 29, 2004, the USA and Canada instituted the STCA and “established the general principle that refugee claimants should make their claim in the first of these countries they reach” and that both countries are safe for refugees.⁹⁶ The USA is the only country designated as a safe third country under s. 159.3 of the IRPA.⁹⁷

Until March 2023, under the STCA, people entering Canada at official Canada-US land border crossings and by train were not eligible to make a refugee claim and would be returned to the USA unless they met an exception.⁹⁸ Claimants would only be ineligible to make a claim if entering Canada at an airport if the person was refused refugee status in the USA and was in transit through Canada after being deported.⁹⁹ Prior to March 2023, claimants could enter Canada at unofficial or “irregular” border crossings and make a refugee claim. More refugee claimants began crossing the border into Canada through unofficial or “irregular” border crossings starting in 2017.¹⁰⁰ Likely in response to increased political pressure,¹⁰¹ the STCA was expanded across the entire land border, including internal waterways, on March 24, 2023.¹⁰² As a result, claimants who enter Canada irregularly are ineligible to make a claim within the first 14 days of arriving in Canada.¹⁰³

There are currently four types of exceptions to the STCA: family member, unaccompanied minors, document holder, and public interest.¹⁰⁴

As a result of the STCA, trans foreign nationals residing in the USA who wish to enter Canada by land crossing (for example, if they do not have a visa or electronic travel authorization (eTA) to try to fly to Canada) and make a refugee claim, will be unable to do so unless they meet one of the above exceptions and could be removed to the USA.

Overview of Significant STCA Legal Challenges

On December 29, 2005, the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, and a Colombian asylum seeker in the USA filed an application for judicial review in Federal Court to challenge the constitutionality of the STCA under sections 7 and 15 of the Charter:¹⁰⁵

Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.”

Section 15(1) of the Charter provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”¹⁰⁶

On November 29, 2007, Honourable Justice Phelan of the Federal Court found that sections 7 and 15 of the Charter were engaged and that “several aspects of U.S. law put genuine refugees at risk of refoulement to persecution and/or refoulement to torture.”¹⁰⁷ The government appealed the decision, and the lower court ruling was overturned at the Federal Court of Appeal.¹⁰⁸ The FCA found that the Charter challenge should not have been entertained at the lower court because there “was no factual basis upon which to assess the alleged Charter breaches.”¹⁰⁹ The Supreme Court of Canada denied the Applicant’s application for leave on February 5, 2009.¹¹⁰

In July 2017, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, and citizens of El Salvador, Ethiopia and Syria seeking to make a refugee claim in Canada, started a new challenge of the designation of the USA as a safe third country in Federal Court.¹¹¹ The Applicants argued a causal connection between Canada upholding the STCA and the deprivation of section 7 rights when failed STCA claimants are imprisoned after returning to the USA.¹¹² Justice McDonald determined that “deprivations of section 7 rights caused by actors other than our government are still subject to the guarantee of fundamental justice, as long as there is a sufficient causal connection between our government’s participation and deprivation…accordingly the fact that STCA returnees are imprisoned by US authorities, does not immunize the actions of Canadian officials from consideration.”¹¹³ In addition, Justice McDonald stated that the evidence showing CBSA officials physically handing over claimants to US officials makes Canada an “active participant”, which fulfills the “sufficient connection” required by Suresh and concluded that Canadian officials returning ineligible STCA claimants to the USA results in detention.¹¹⁴ Further, as Justice McDonald pointed out, the Court in Suresh, noted “deportation to torture may deprive a refugee of liberty, security and perhaps life.”¹¹⁵ Justice McDonald held the Applicant established a breach of section 7 since “the penalization of the simple act of making a refugee claim is not in keeping with the spirit or intention of the STCA or the foundational Conventions upon which it was built.”¹¹⁶ However, Justice McDonald notably declined to address section 15 in light of the section 7 infringement.¹¹⁷

The Federal Court of Appeal overturned the Federal Court’s decision.¹¹⁸ However, the Supreme Court granted leave and rendered a decision in June 2023. The constitutional validity of the designation of the United States as a safe third country was upheld in that it was found to meet the principles of fundamental justice under section 7 of the Charter. However, the Court remitted the section 15 Charter infringement assessment to the Federal Court, opening the door for a future equality rights challenge, which will be discussed further below.

V. The Solutions: Exceptional Immigration and Refugee Policies for Trans Americans and Trans Individuals Impacted by the STCA

According to the Government of Canada:

Canada stands up for the protection and promotion of the human rights of lesbian, gay, bisexual, transgender, queer, 2-spirit and intersex (LGBTQ2I) people globally.

The human rights of all persons are universal and indivisible. Everyone should enjoy the same fundamental human rights, regardless of their sexual orientation and their gender identity and expression.¹¹⁹

It is a statement of fact that LGBTQ2S+ persons continue to be vulnerable worldwide due to persisting homophobic and transphobic attitudes and laws. The Government of Canada has claimed to be an advocate for improving the rights of LGBTQ2S+ people, including refugees, both domestically and abroad.¹²⁰

It is clear from the country conditions evidence discussed in Section II, as presented by reputable news and human rights organizations, that trans individuals in the USA have been increasingly targeted by discriminatory and harmful policies, which have worsened very recently and continue to evolve.¹²¹  Given the recent, ongoing changes in the USA, Canada must demonstrate its continued commitment to LGBTQ2S+ rights and pursue exceptional immigration and refugee policy measures to assist trans individuals in need of safety. The final section of this paper will discuss potential policy solutions.

Recommendation 1: Implementing A New IRB Policy Regarding Trans American Citizens

As there are currently no special immigration pathways for American citizens,¹²² some individuals who fear discrimination and/or persecution in the USA will likely try to make refugee claims in Canada. Without a specific policy in place to assist Board Members, trans Americans will likely face unique challenges in accessing refugee protection in Canada due to the requirement to demonstrate a lack of state protection and an IFA.¹²³ Based on the country conditions evidence discussed above and in view of Guideline 9 – as it is well-stablished that an IFA is not reasonable if a SOGIESC person must hide their identity to live safely – and the American government has effectively attempted to erase the existence or potential for a trans person to live their life openly and safely, then it seems a trans person may reasonably advance the argument of no IFA in the USA.

A recent successful stay of removal case in Federal Court involving a non-binary American demonstrates that some decision makers are recognizing the dangerous shift in policies in the USA designed to harm trans Americans.¹²⁴ Justice Blackhawk determined the Applicant satisfied the three-part test for a stay of removal.¹²⁵ With regards to the serious issue to be tried part of the test, Justice Blackhawk determined it was not reasonable for the Officer to rely on country conditions evidence and the National Documentation Package from January 2023, “given the public’s general awareness of the evolving situation in the US and the changing conditions for certain designated groups in the US.”¹²⁶

An October 2022 Refugee Appeal Division case is also relevant to our discussion. In that case, a Jewish trans American woman came to Canada in 2019 to seek protection as a result of her fears that the American police and justice system would not protect her against transphobic Americans, including specific individuals. The RPD noted the availability of IFAs in the states of Delaware, Illinois, Maine, Nevada, New Jersey and New York.¹²⁷ The Appellant was successful on appeal, and the panel determined that transphobia is a “nationwide” problem and state protection and an IFA were not available to the claimant due to their particular profile.¹²⁸

Notably, the IRB National Documentation Package for the USA was updated on August 7, 2025, and includes sources regarding anti-trans legislation.¹²⁹ The IRB could reasonably consider a specific written policy or Guideline 9 addendum and/or further training for Board Members to help assess refugee claims of trans Americans based on recent country conditions evidence. Such a policy would align with current policies of the IRB, including Guideline 9 and Gender-based Analysis Plus Policy. The stated purpose of Guideline 9is:

To promote greater understanding of cases involving sexual orientation, gender identity an expression and sex characteristics (SOGIESC) and the harm individuals may face due to their non-conformity with socially accepted SOGIESC norms in a particular cultural environment.¹³⁰

In addition, since March 2022, the IRB’s Gender-Based Analysis Plus Policy (“GBA Plus”) emphasizes the Government of Canada’s is:

Committed to using Gender-based Analysis plus in the development of polices, programs and legislation since 1995. GBA Plus is an analytical process used to assess how diverse groups of women, men and gender-diverse people may experience polices, programs and initiatives. The “plus” in GPA Plus acknowledges that GBA goes beyond biological (sex) and socio-cultural (gender differences; GPA Plus also considers many other identity factors, like race, ethnicity, religion, age and metal and physical disability.¹³¹

Recommendation 2: STCA Exemption for Trans Individuals Previously Residing in the USA

The political, legal, and social landscape of the USA has shifted significantly since the SCC reached its decision in Canadian Council for Refugees v. Canada in 2023.¹³² The Appellants had made a section 15 challenge in Federal Court in 2017 on the basis that women who feared gender-based persecution were adversely affected by s. 159.3 of IRPA, designating the USA as a safe third country.¹³³ The SCC in 2023 determined it was “not well placed to make the factual findings necessary to assess the merits of the section 15 claim”,¹³⁴  but that it was in the interests of justice to send the matter back to the Federal Court.¹³⁵ This paper proposes that a new legal challenge could be made in Federal Court on the basis that trans individuals previously residing in the USA are adversely impacted¹³⁶ by s. 159.3 of the IRPA in violation of section 15 of the Charter. This vulnerable group can be relieved of further discrimination by an STCA exemption under Article 6.

Joshua Sealy-Harrington compellingly argues that a clear legal test for equality is not possible nor desired, given its potential to assess inequality and change something for the better.¹³⁷ The origins of section 15 jurisprudence can be traced to the 1989 SCC decision in Andrews.¹³⁸ Kapp reaffirmed the principles set out in Andrews  and noted, “Andrews set the template” for the Court’s “commitment to substantive equality.”¹³⁹ Substantive equality recognizes that as a result of people’s differences, achieving equality and preventing discrimination does not involve treating people the same, in contrast to formal equality.¹⁴⁰ Recently, in Fraser, it was stated that section 15 “reflects a profound commitment to promote equality and prevent discrimination against disadvantaged groups.”¹⁴¹ Patricia Hughes has discussed the importance of substantive equality as a consistent principle in Canadian equality rights jurisprudence:

While one can certainly argue about whether any particular case results in substantive equality or whether the analysis used is consistent with achieving substantive equality (that is, how well the rhetoric matches outcomes), it is nevertheless a constant in the Supreme Court’s discourse and it gives legitimacy to it as an appropriate objective for societal change.¹⁴²

The Ontario Human Rights Commission has explained that a contextualized approach to assessing discrimination is helpful and should take into account the historical, political and social factors that provide a better context for the grounds of discrimination that an individual might be subjected to.¹⁴³ A contextualized and intersectional approach to discrimination and equality rights can help courts and tribunals comprehend the complex ways in which marginalized members of society experience discrimination.

O’Brien at al. reason that section 15 analysis is meant to be flexible and contextual in order to reflect that various groups can experience government action and inaction in different ways¹⁴⁴ and interpreting section 7 through a section 15 lens allows for a reinterpretation of the notion of “deprivation” under section 7.¹⁴⁵ This reinterpretation draws from the reasoning of Margot Young, who writes, “section 15 equality interests may predictably be employed in construing section 7 obligations more broadly to demand state response to the material and social needs of marginalized individuals in Canadian society.”¹⁴⁶Accordingly, it is a false assumption that everyone experiences the same threshold to life, liberty and security of the person; rather, marginalized persons may need government action to bring them up to the same basic threshold experienced by other more privileged members of society.¹⁴⁷

Research indicates that LGBTQ2S+ individuals experience psychological distress at higher rates than those who are heterosexual and cisgender.¹⁴⁸ An intersectional analysis further demonstrates that LGBTQ2S+ people of colour experience unique forms of marginalization that can result in increased psychological distress.¹⁴⁹ The reality for many trans people of colour is that their intersecting identities can result in compounding gender discrimination and racism, resulting in additional challenges and barriers and disproportionately high rates of violence.¹⁵⁰ In a report dated November 2024, the Human Rights Campaign’s (“HRC”) “Dismantling a Culture of Violence” found that since 2013, at least 372 trans individuals have been killed in the USA, with the majority of victims being young (30 years or younger), women of colour  killed by a gun.¹⁵¹ The HRC rightly calls this an “epidemic of violence”  and further explains:

[It] stems from a series of root causes: many victims are experiencing homelessness, housing insecurity and /or poverty; interpersonal violence plays a large role, with victims often killed by romantic partners, family members, and friends; in many other instances, victims lose their lives in transphobic fueled by anti-trans stigma and discrimination in all aspects of daily life, including polices and rhetoric that institutionalize transphobia through practices that prevent trans and gender-expansive people from having the same access to opportunities, resources and power as their cisgender peers.¹⁵²

Terry Skolnik has argued that the courts have narrowly interpreted section 15 equality rights as “failing to recognise discrimination based on quasi-immutable traits” such as poverty and homelessness thus “limiting its potential”.¹⁵³ Given that many trans people experience further discrimination “based on quasi-immutable traits” such as increased rates of poverty and discrimination in access to housing which may worsen as a result of intersecting identities,¹⁵⁴ Skolnik’s argument is helpful to understand how an expanded and contextualized interpretation of section 15 may be important. According to a Williams Institute Study, a staggering 51% of Black American and 59% of Native American trans women have experienced homelessness.¹⁵⁵

A contextual analysis would indicate that a trans person’s ability to enjoy the right to life, liberty and security of the person might start below the threshold guaranteed by the Charter.¹⁵⁶ O’Brien et al. explains this position may be even lower when other intersecting identities, such as race, ethnic origin, sexual and gender identity, are engaged, as explored in Inglis v British Columbia (Minister of Public Safety).¹⁵⁷ O’Brien et al. further argue that the theory that section 15 equality principles can influence section 7 (in that government action could be required) first appeared in Inglis.¹⁵⁸   In that case, the British Columbia provincial government tried to cancel a program that ran from 1973 until 2008 that allowed incarcerated mothers to keep their babies with them in provincial institutions.¹⁵⁹ Using a contextual analysis, it was clear that many of these women were members of vulnerable and disadvantaged groups, and depriving them of the basic right to care for their children represented a breach of section 7.¹⁶⁰

It is the author’s position that the 2023 SCC Canadian Council of Refugees v. Canada decision opened the door for a future section15 challenge for trans individuals impacted by the STCA.

In a joint February 2025 statement, the Canadian Council for Refugees and Amnesty International renewed calls on Canada to withdraw from the STCA, but also importantly noted that under Article 6 of the STCA, Canada has the authority to admit refugee claimants “where it determines that it is in its public interest to do so.”¹⁶¹

Under article 6 of the STCA, Canada already has the authority to admit any refugee claimants “where it determines that it is in its public interest to do so.” The Canadian Council for Refugees and Amnesty International Canada believe that it is in the public interest to admit all claimants whose rights and dignity are not protected in the U.S., and this can certainly include trans individuals. The organizations maintain, however, that the only effective way to ensure refugees are protected is to withdraw from the Safe Third Country Agreement.

In light of all of the above, it recommended that Canada institute an exemption under Article 6 of the STCA for trans individuals previously residing in the USA because it is in the public interest to do so based on Canada’s domestic and international commitments to upholding LGBTQ2S+ rights.

Recommendation 3: TRP for Trans Americans and Trans Foreign Nationals Previously Residing in the USA Currently Inside Canada

A temporary resident permit (“TRP”) allows an inadmissible or non-compliant (i.e. overstayed) foreign national to come to or remain in Canada temporarily under s. 24(1) of the IRPA.¹⁶² For example, there are special TRPs for victims of human trafficking,¹⁶³ foreign nationals who were in state care,¹⁶⁴ and victims of family violence.¹⁶⁵

In fact, Justice Wagner pointed to the availability of TRPs as a “curative measure” under the STCA in the 2023 Canadian Council for Refugees v. Canada decision:

[70] In the legislative scheme at issue in this case, examples of preventative measures include the death penalty exception in s. 159.6 of the IRPR and the various family reunification exceptions in s. 159.5(a) to (d). Curative measures include the availability of temporary resident permits under s. 24, humanitarian and compassionate exemptions under s. 25.1(1), and public policy exceptions under s. 25.2(1).¹⁶⁶

It is recommended that IRCC explores the possibility of an exceptional TRP with expedited processing for trans Americans and trans individuals previously residing in the USA, seeking to remain in Canada temporarily. This option may be particularly important for individuals seeking to access gender-affirming healthcare.

Conclusion

As outlined above, Canada has stated its ongoing important commitment to helping LGBTQ2S+ people inside and outside Canada. In light of the recent alarming political, legal and social changes in the USA which continue to evolve, exceptional immigration and refugee policies, such as an IRB policy to help trans Americans, an STCA exemption to help trans foreign nationals previously residing in the USA who are impacted by the STCA and expedited TRPs will likely be life-saving.

Additionally, given that trans individuals have been shown to face “post-migration oppression” in the form of “precarious housing and employment, minimal social capital and low social position,”¹⁶⁷ it is further recommended that trauma-informed settlement resources be made available on a case-by-case basis.

It is also cause for concern that the Government of Canada recently decided that new NEXUS card applicants and renewals will be required to select their gender as male or female, since such a policy can discriminates against specific groups of people, counter to section 15 of the Charter.¹⁶⁸ The Government should reverse this policy to ensure it upholds its human rights obligations towards LGBTQ2S+ people.

Finally, although a discussion of this developing area is beyond the scope of this paper, several Canadian immigration lawyers have drawn important attention to a growing reality in Canada’s current immigration system that the use of “algorithmic decision-making systems” or “ADMs” can have a disproportionately discriminatory impact on marginalized individuals and groups.¹⁶⁹ In light of this developing area, the exceptional migration pathways outlined in this paper may be of particular importance given the unique vulnerabilities of trans individuals in migrating, especially those with intersecting identities.