Popular e-petition calling for Canada to allow trans people to claim asylum, but that right is 'already established'

Canadian Prime Minister Justin Trudeau delivers remarks after participating in a ceremony raising the pride and transgender flags on Parliament Hill in Ottawa, Wednesday June 14, 2017. THE CANADIAN PRESS/Adrian Wyld

More than 130,000 people have signed an e-petition calling on Canada to give transgender and non-binary people fleeing harmful laws in their home countries the right to claim asylum, but that's already possible in this country.

The online petition asking the federal government to take action launched in January has been recently gaining traction on social media, seeing tens of thousands of Canadians, as well as celebrities, sharing the petition and calls to go sign it.

"We, the undersigned, residents of Canada, call upon the House of Commons to extend to transgender and nonbinary people the right to claim asylum in Canada by reason of eliminationist laws in their home countries, whatever country that may be," reads the e-petition. 

Despite the e-petition asking for Canada to allow asylum claims on grounds that are already established, it's currently garnered the most signatures by far of any current petitions on the House of Commons' site, from all provinces and territories.

It was initiated by Ontario woman and trans advocate Caitlin Glasson. In an interview with CTV News Kitchener in February, she said she picked an e-petition "as a means of directly approaching the government with something I feel is urgent and important."

The e-petition points to recent laws and proposed policy changes in the United States and United Kingdom seeking to weaken protections for trans and non-binary people, in making the case for allowing asylum claims from countries that have historically been considered "safe."

An immigration lawyer with expertise in LGBTQ2S+ cases told CTVNews.ca however, that LGBTQ2S+ people already are able to qualify as refugees by citing a risk of persecution—including in relation to discriminatory laws in their home country—based on their sexual orientation or gender identity.

"This petition is aimed at getting legal protection that we actually already have in Canadian law. We represent many trans and non-binary people in our practice, and they're very successful in front of the Refugee Board," said Michael Battista in an interview. "It's not like only certain countries can claim on the basis of certain grounds."

According to Immigration, Refugees and Citizenship Canada (IRCC), the federal department responsible for Canada's asylum policies, Canada has a "proud history of protecting and helping resettle the world’s most vulnerable groups," and that includes allowing LGBTQ2S+ people to claim asylum over concerns of persecution. 

Through the streams currently available, the degree of vulnerability for both resettled refugees and asylum claimants' cases are considered.

Senior departmental spokesperson for IRCC Remi Lariviere said Canada works with agencies such as the United Nations Refugee Agency and Rainbow Refugee Society to resettle government-assisted refugees, while all eligible asylum claimants are assessed on the individual merits of their situation by an independent tribunal known as the Immigration and Refugee Board of Canada (IRB).

"In making its decisions, the IRB takes into account whether an individual has a well-founded fear of persecution based on race, religion, political opinion, nationality, or membership in a particular social group, including 2SLGBTQI+," Lariviere said in a statement to CTVNews.ca.

The online petition is being supported by Green Party MP for Kitchener Centre, Ont. Mike Morrice, who called the legal changes in the U.S. and the U.K. "disconcerting," and pointed to the popularity of the proposal as a strong sign that Canadians want the government to affirm this country's welcoming reputation.

"I think it's so important to be mindful of what Canadians are pointing legislators towards in terms of concerns of theirs. And given the number of signatories here, I think that gives us pretty good evidence of that," he said.

He told CTVNews.ca he was not aware that the current asylum regime was available to claimants from countries considered safe, pointing to the Safe Third Country Agreement.

However, that cross-border agreement blocks refugee claims from non-U.S. citizens who travel through the U.S. to make a refugee claim in Canada, noted Battista. It does not apply to U.S. citizens.

In a follow up, his office told CTVNews.ca that: "While it may be technically possible… practically we’re not aware of any cases someone was successful."

It is true that while citizens in any country—including the U.S. and U.K.— can make a claim for refugee status, the issue becomes more complicated when going the step further of considering, beyond having the right to claim, the actual rate of success of these claims from applicants coming from certain countries.

Due to a concept known as "internal flight alternative," part of the considerations in determining whether someone is at risk of persecution is whether that person could safely relocate to another part of their home country.

"So I think if somebody was coming from the United States, there would be that question of could they go to another part of the country and live safely?" said Battista.

For example, the IRB may look at whether it would be reasonable for an American asylum claimant to move to a state such as Minnesota, where the governor recently signed a "trans refuge" order to protect access to gender-affirming care.

According to Kimahli Powell, the CEO of Rainbow Railroad, an organization that helps resettle LGBTQ2S+ refugees in Canada, of the thousands of requests for help received in 2022, 300 requests came from inside the United States, including from American citizens.

"As anti-trans laws rose, and Roe V. Wade was rolled back, these requests spiked," he tweeted late last year. 

Based on 2022 federal statistics released by the IRB, a total of 293 claims alleging prosecution in the U.S. were processed, and the majority were either rejected or withdrawn. It appears fewer than 20 claims were made from citizens alleging persecution in the U.K.

Some supporting the petition have also pointed to current shortcomings when it comes to existing supports for trans individuals in Canada.

"It’s hard to get people to care about improving trans lives here in Canada when things are so much worse in many U.S. states," tweeted Metropolitan Church of Toronto associate pastor Rev. Junia Joplin. 

"I’m not saying don’t sign the petition. I did, in fact. But I’ve lived as an American in Canada long enough to recognize how folks in both countries have a rosier view of Canada than it deserves."

While the e-petition is "talking about something that's already established in Canadian law," Battista said, he thinks there's still value in it, for drawing attention to the issue and giving the government a chance to make it clear that this is a valid basis for seeking protection.

"Because most people who face persecution based on their sexual orientation, their trans status, or their non-binary status, don't realize that they can actually seek safety in another country under international law on that basis… don't realize that it can be the basis of seeking safety in Canada," he said.

The e-petition will remain open for signatures until May 26. Shortly after that, Morrice can present it in the House of Commons, a routine move that happens to any petition that garners more than 500 signatures. The government is not bound to act based on the calls in e-petitions, but it will have to respond within 45 days.

Immigration Minister Sean Fraser's office is aware of the e-petition, pointing CTVNews.ca to the current rules.

Asked whether she was concerned that the government's response will do little more than point back to the existing protections, the e-petition sponsor said no.

"We'll see how it goes," Glasson said.