Trans woman required to identify as ‘male’ by Immigration Canada: ‘It was agony’

As a refugee claimant only, based on their foreign passport. If their claim is accepted, Canadian documents allow for gender identity.

Given the apparent inconsistencies between the IRB and IRCC regarding the policy and its implementation, expect this will change but given the large numbers of temporary residents (students, workers) this would apply to, implementation may be more complex than it would appear:

The last thing Naomi Chen’s wife said to her before she fled Hong Kong was “don’t cry too much — Canada is the place where you can live as who you are.”

But this, it turns out, was untrue for Chen, a trans woman who says she was persecuted in Hong Kong because of her gender.

After arriving in Toronto Chen made a refugee claim and was then told by Canadian immigration officials she must be identified as “male” on her refugee protection claimant document, her only valid piece of identification in Canada.

Global News has agreed to use a pseudonym for Chen because of fears she could be persecuted if sent back to Hong Kong.

“I was stunned. I was crying. I was distressed,” Chen said. “This is not something I expected.”

According to government policy, all information on an asylum seeker’s immigration documents “must reflect what is indicated on their foreign passport.”

This is true even in cases such as Chen’s, where a person receives hormone therapy, has undergone sex reassignment surgery, and where their lived gender no longer conforms with the sex they were assigned at birth.

It’s also true for all temporary resident documents issued by the government, including work and study permits.

“It’s discrimination,” Chen said.

Since coming to Canada, Chen has felt isolated and dreads leaving her apartment because she might be asked to show her ID that says she’s a man, essentially outing her as a trans woman.

She also said being misgendered by the Canadian government makes her feel less valued than other people.

“I’m so afraid to live as a woman here,” she said.

Right to self-identify

The Canadian Human Rights Act prohibits discrimination based on: sex, race, national or ethnic origin, sexual orientation and gender identity.

The Ontario Human Rights Code also prohibits discrimination on the basis of sex or gender identity.

“A person’s self-defined gender identity is one of the most basic aspects of self-determination, dignity and freedom,” reads an Ontario Human Rights Commission policy on preventing discrimination based on gender identity and expression.

“For legal and social purposes, a person whose gender identity is different from their birth-assigned sex should be treated according to their lived gender.”

The federal government allows citizens, permanent residents and refugees whose claims are accepted, meaning they’re allowed to stay in Canada permanently, to change their sex or “gender identifier” on official travel documents, such as a passport or permanent resident card, by completing a one-page form.

Yet for refugee claimants whose cases have not yet been decided — even those whose claims are based solely on alleged persecution due to their status as an intersex or LGBTQ2 person — the only way they can change their documents to reflect their lived gender is if they first change the information on their foreign passport, according to Immigration, Refugees and Citizenship Canada’s policy.

But this is impossible in Chen’s case because she fled Hong Kong due to the persecution she experienced there, including the alleged theft of her business by family members after she came out as a trans woman.

Chen married a woman in Hong Kong before she transitioned. And because same-sex marriage is illegal in Hong Kong, even if she were able to change her original passport, which she can’t, she fears this would invalidate her marriage.

“It’s simply unconscionable that the Canadian government would knowingly contribute to a process that discriminates against individuals based on their gender identity and gender expression,” said Chen’s lawyer, Ashley Fisch.

Fisch also believes the government’s policy violates Canada’s Charter of Rights and Freedoms by failing to provide “equal treatment under the law” for trans and gender diverse refugee claimants and by perpetuating the types of hardships they’re forced to endure in other countries.

“I just feel sorry for the poor woman,” said Amanda Ryan, outreach committee chair for Gender Mosaic, an Ottawa-based trans support organization.

Ryan believes recent changes to federal human rights law could be a basis for extending the right to self-identify to refugee claimants and temporary residents. She said education — both in and outside government — is key to expanding protections for the trans community.

“When you start talking to people and they start learning about trans issues, there’s an awful lot of sympathy and understanding for us,” Ryan said.

“People that don’t have to deal with a trans person simply don’t have that information. That’s ignorance in the true sense of the word.”

Trans and intersex refugees at greater risk

After arriving in Canada and undergoing initial screening to determine if they are eligible to make an asylum claim, would-be refugees are given their refugee ID, which must conform with their foreign passport.

Claimants must then submit their formal claim to the Immigration and Refugee Board of Canada (IRB).

The required paperwork asks claimants what sex appears on their foreign passport. However, contrary to Immigration Canada’s policy, claimants are told they can self-identify on IRB documents if their passport does not conform with their lived gender.

IRB adjudicators are instructed to refer to claimants by their preferred pronouns, including in written decisions, even if this does not match their foreign passport. The Board’s guidelines also acknowledge that not recognizing a person’s lived gender can lead to serious consequences.

“Trans and intersex individuals may be particularly vulnerable to systemic discrimination and acts of violence due to their non-conformity with socially accepted norms,” the guidelines say.

Dr. June Lam, a psychiatrist at the adult gender identity clinic at Toronto’s Centre of Addiction and Mental Health, said misgendering trans and gender diverse people can contribute to negative mental health outcomes, including increased suicidal thoughts and actions.

“It’s like we’re recreating the systemic oppression that they’re trying to escape by coming to Canada,” Lam said.

“These barriers really reinforce that even our society views their life, their identity as less valuable.”

While Lam believes Canada is generally a much safer place for LGBTQ2 people than many other countries around the world, he said being forced to use an ID that outs someone as having a different birth-assigned sex than their lived gender puts them at greater risk of physical and psychological harm.

He also cites research that found having a government-issued ID that reflects a person’s lived gender significantly reduces the likelihood of suicidal thoughts and actions among trans and gender diverse people.

“It’s almost like transgender folks have to proove themselves over and over again before our government and our society believes they are who they are,” he said.

Policy sometimes ignored

When Chen was first issued her refugee ID she was told in person by the Canada Border Services Agency that it must conform with her Hong Kong passport, in accordance with government policy.

Chen’s lawyer then sent a letter to the government requesting the ID be reissued with her correct gender, but the request was denied.

“We regret to inform you that refugee claimants are not able to request a change in gender,” a manager from Immigration Canada wrote.

But nearly identical requests have been accepted in the past, said Adrienne Smith, a Toronto immigration lawyer who specializes in LGBTQ2 refugee claims.

Smith knows this because the letter Chen’s lawyer sent the government was based on a template she wrote several years ago. Smith said she’s used this letter on multiple occasions to persuade immigration officials to issue documents in a claimant’s lived gender.

“It just doesn’t make any sense,” Smith said. “A trans refugee claimant shouldn’t need to have a lawyer that understands trans-specific issues in order to get access to a basic right.”

Global News asked the government to explain why refugee claimants’ documents must reflect the information on their foreign passports and whether this policy systemically discriminates against trans and non-binary asylum seekers. The government did not answer either of these questions.

The government also did not say whether it believes that insisting that non- Canadian citizens and temporary residents be issued documents that don’t align with their lived gender violates the Charter of Rights and Freedoms.

“Everyone should be free to lead happy and authentic lives in Canada, regardless of how they identify, or who they love,” said Kevin Lemkay, a spokesperson for Immigration Minister Marco Mendicino.

Lemkay said the minister has made reviewing gender identity requirements for government-issued documents a priority. This includes the refugee protection claimant document.

The government has also passed legislation, including changes to the Canadian Human Rights Act, that make it illegal to discriminate based on gender identity and expression, while introducing the “X” gender marker on passports and permanent resident cards.

“We remain steadfast in our dedication to inclusion and equality,” Lemkay said.

Despite being misgendered by the government, Chen is determined to remain in Canada. She believes Canada is a place where she can live a life free from the type of persecution she experienced in Hong Kong.

She also hopes that one day she’ll be reunited with her wife — who was denied an entry visa to Canada because of questions about the purpose of her visit, and who does not have a Hong Kong passport, which would exempt her from visa requirements — and that they’ll be able to live together in a same-sex marriage.

“I came to Canada for the freedom of my soul,” Chen said.

Source: Trans woman required to identify as ‘male’ by Immigration Canada: ‘It was agony’

Before we hurl insults around about ‘transphobes’ let’s be clear about what we mean

Definitions can be helpful but can also be divisive as we have seen the shift from the IHRA antisemitism working definition to one that has been adopted by governments and institutions:

When anti-semitism still appeared to be the Labour membership’s most glaring problem with intra-party prejudice and related mudslinging, great importance attached to definitions. What might seem to some members a perfectly allowable comment on the Israeli state might to others, using the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, be manifestly hateful and targeted.

The party’s adoption of that definition was itself disputed. Labour took on the IHRA definition in 2016, then argued about adopting its examples of antisemitic behaviour. As ugly as this difficulty with internationally agreed terminology might look from outside, the interest in precise wording represented some common ground. On the definition of antisemitism, Labour’s factions were at least able to communicate.

More recently, the party has adopted a working definition of Islamophobia advanced by the all-party parliamentary group on British Muslims (after consultation with more than 750 British Muslim organisations, 80 academics and 50 MPs). The group’s co-chair Wes Streeting dismissed objections that free speech would suffer. “While our definition cannot prevent false-flag accusations of Islamophobia to shut down reasonable debate and discussion, it does not enable such accusations. In fact, it makes it easier to deal with such behaviour,” he said. “Our definition provides a framework for helping organisations to assess, understand and tackle real hatred, prejudice and discrimination.”

There could hardly be a better case for another considered definition – after a week in which its meaning has been both stretched and contested – of what should be understood by transphobia. Unless we want to leave that job to the courts. Is it allowed, for instance, to satirise self-ID, as in the case of Harry Miller? Yes, says Mr Justice Knowles. And in a passage that might have been inspired by Labour’s pledges: “Some… are readily willing to label those with different viewpoints as ‘transphobic’ or as displaying ‘hatred’ when they are not.”

There are obvious implications for the unprecedented debates prompted by a proposed reform to the Gender Recognition Act, facilitating gender self-identification (ID). Can it be damagingly transphobic – if Miller is not – for people to meet and discuss the possible implications for women-only spaces and safeguarding? Should people be able to meet, without fear of abusive crowds, to share concerns about early gender dysphoria diagnosis/affirmation? Is it actionably bigoted – unlike Miller – to question the fairness of male-bodied athletes competing in women’s elite sport?

Ontario considering further changes to how gender is displayed on government documents

These consultations should not only be with Ontario stakeholders but the federal government also needs to be involved given the implications across a series of programs (see earlier New gender-neutral Ontario health cards make it harder to get a passport illustrating the need):

Ontario is considering more changes to the collection and display of gender information on government documents, not long after announcing gender-neutral driver’s licences and health cards.

Public consultations launched earlier this month look at how gender information is treated on government forms and identification documents, including birth and marriage certificates.

A preamble to an online survey says “people with transgender and non-binary gender identity may face barriers and other negative outcomes when trying to access services” so the government wants to ensure its policies are inclusive.

Ontario has already announced that starting in early 2017, drivers will be able to select an X instead of an M for male or F for female on their licences.

People can also now obtain health cards without sex information displayed on the front of the card.

“There’s more work to be done on this, so we’re reaching out to Ontarians to make sure we develop good policy that the government can use to make appropriate decisions about when and how to collect, retain, use and display information about persons sex and gender,” Christine Burke, a spokeswoman for the government and consumer services minister, said in a statement.

Trans advocate Susan Gapka would like to see sex and gender not displayed on birth certificates. The type of changes the government is contemplating are relatively easy and low-cost to achieve, but mean so much to the community, she said.

“I was born again, so to speak, 20 years ago,” Gapka said. “Now I have to renew my health card and having the correct or the accurate way that I feel best describes me, as female, is really, really important to me. In fact, I had to change laws. We had to change laws and change society’s opinions so I could have that.”

The consultation survey says the government is proposing to collect gender information as the default and sex information only if needed. For example, sex is necessary for the Ontario Health Insurance Program, it says.

Greater use of X as a gender identifier is also possible on other identification, such as photo ID cards for people who do not have driver’s licences. And, the consultation document says, the government wants to see a consistent process for people who identify as trans or non-binary — defined as people who don’t identify exclusively as male or female.

Source: Ontario considering further changes to how gender is displayed on government documents | National Post

Federal officials wrestling with gender neutral ID issues for more than a year

There is a complexity in the embedded links between various identity documents that does need time to sort out, given how central gender has been in the various identity cards and systems.

But clearly coming and expect the 2021 Census will include an “other” category and gender-based analysis will similarly need to be broadened:

Documents from June 2015 show officials from Citizenship and Immigration Canada were looking into what they called “identity management” issues should someone from a country that allows a third sex designation on their passports apply for Canadian immigration documents.

Internationally, there is a “growing recognition of a third sex/gender category…for those who identify as intersex, indeterminate, or unspecified,” officials from ESDC wrote as part of a presentation last year with Citizenship and Immigration Canada counterparts.

Seven countries allow a third sex designation on their passports – Australia, Bangladesh, Germany, India, Nepal, New Zealand and Pakistan.

Passport standards from the International Civil Aviation Organization, which Canada adheres to, allow governments to allow a third sex or gender category, usually marked with an ‘X,’ officials wrote in the documents obtained by The Canadian Press under the Access to Information Act.

Citizenship and Immigration Canada said it would respond Tuesday to questions posed to it on Monday.

At the same time, changing the use of sex designations in the registry of social insurance numbers would cause issues for agencies that rely on the information as part of their programs, like Employment and Social Development Canada and the Canada Revenue Agency that use the detail for gender-based analysis on income distribution, job data and even student loan recipients.

In May, the department told The Canadian Press the sex designation data from the registry is used primarily for gender-based analysis and not for determining eligibility for benefits. Federal and provincial agencies that use the information to validate identities raised concerns over the complete removal of sex information from the registry.

Source: Federal officials wrestling with gender neutral ID issues for more than a year – Macleans.ca