Sexual Orientation and Gender Identity (SOGI) Asylum Claims in Canada, by Bridget Woods

By Bridget Woods, student of the University of Victoria

The Immigration and Refugee Board of Canada (IRB) has recently updated its ‘Guideline 9’ on Sexual Orientation and Gender Identity and Expression.

The new guidelines have come from concerns identified from past proceedings from the IMB that relate to claim refusal. The new guidelines maintain that those who experience persecution based on their sexual orientation or gender identity and expression qualify as a social group, which enables them to be considered under the 1951 Refugee Convention. Another asset to the guidelines is its acknowledgement of the spectrum of sexual and gender characteristics, going so far as to call standard terminologies deficient in their scope and understanding of global and societal variety. The guidelines make particular mention of the importance of understanding country of origin information, focusing on the on the ground reality rather than statutory law. In addition to its progressive use of definitions and language, the guideline is apt to recognize intersections of sexual and gender identities with identifiers such as race, class, religion, and age. Particular attention is given to unique threats for children with SOGI expression, which is a precedent setting move in the global arena of SOGI based refugee claims. Although these changes are promising, there are also shortcomings with the new Canadian guidelines. One example comes from the guidelines understandings of persecution. If same-sex acts are criminalized in a country, the guidelines do not consider that environment as grounds for persecution, however- if someone has to conceal their sexual or gender identity, that may be considered persecution. These dubious parameters leave too much room for refusal for those experiencing repressive regimes. Overall, the guidelines signal a positive move towards recognizing the intricacies of claims based on SOGI expression, and if it can be clarified accordingly, it may lead the way for global recognition of SOGI based refugee claims.