Refugee advocates want Canada to make exemption for U.S. transgender asylum claims

OTTAWA — Refugee advocacy groups are asking the federal immigration minister to make an exemption in the Safe Third Country Agreement for transgender refugee claimants in the United States to seek asylum in Canada.

The request comes after President Donald Trump moved within hours of returning to the White House Monday to use an executive order declaring that the U.S. will recognize only two sexes, male and female, based only on biological characteristics.

Gauri Sreenivasan, co-executive director of the Canadian Council for Refugees, said the orders will harm transgender people who are seeking to make an asylum claim in the United States.

Under Trump’s policies for example, a transgender woman could be placed in a detention facility with male detainees.

“It’s very obvious that trans people seeking asylum in the U.S. have just got enormously less safe. We don’t know yet what that will mean for asylum determination, but it’s clear that they’re unsafe if detained,” said Sreenivasan.

The agreement states that a refugee claimant landing in either Canada or the U.S. must make their claim in the country in which they first arrive. It is based on the idea that both countries are equally safe for refugees.

On Tuesday, Canadian Immigration Minister Marc Miller told CTV in an interview that he sees the U.S. as a safe place for the purposes of the Canada-U.S. Safe Third Country Agreement when asked about its application to transgender people and potentially stateless individuals.

In an emailed statement from Miller’s office to The Canadian Press Wednesday, the minister said the government appreciates there are concerns about Trump’s executive orders and what they mean for Canada.

“We continue to carefully monitor the developments of the new administration and it is the continued expectation that the U.S behave according to the terms of the agreement that manages our border. Our government remains focused on the work we do to ensure the safe and orderly flow of goods and people coming in and out of Canada,” the statement said.

“We will not speculate on future policy decisions or measures, particularly those of a foreign government, including the implementation of any executive orders signed by the President of the United States.”

Trump signed additional executive orders immediately that raised additional concerns about Canada’s asylum policies.

One order paused the refugee program and another ends birthright citizenship. That would mean children born on U.S. soil would no longer get U.S. citizenship automatically if their mothers were in the country temporarily or unlawfully, and if their fathers were not permanent residents or U.S. citizens at the time of birth.

Julia Sande, a lawyer with Amnesty International Canada, said she can’t follow Miller’s logic that the U.S. is safe.

“It’s difficult to understand how in the face of these horrific, cruel, anti-refugee, anti-migrant policies, they could possibly think that,” she said.

Amnesty International Canada and the Canadian Council for Refugees are involved in a constitutional challenge of the Safe Third Country Agreement, set to be heard in Federal Court later this year.

Canada’s stance is that the agreement has been “carefully designed” with safeguards to protect both the border and those fleeing persecution.

The Safe Third Country Agreement does include some exceptions, such as for asylum seekers who have family in Canada.

In the CTV interview, Miller said that adding exceptions requires negotiations with the U.S. through a judicial process.

Sande said Amnesty has argued consistently since before Trump’s first administration that the Safe Third Country Agreement violates the Charter of Rights.

The Trump administration’s move to rescind the order preventing Immigration and Customs Enforcement and Customs and Border Protection from conducting raids in “sensitive areas” like churches and schools further demonstrates the United States is no longer a safe country for the purposes of the Safe Third Country Agreement, she said.

“Is this the kind of partner that Canada wants to rely on to carry out its human rights obligations?” Sande asked.

“It’s very difficult to understand how (Canada has) maintained that position now in the face of these executive orders issued on day one.”

Sreenivasan said it’s important for Canada to remember its commitment to protecting people fleeing war and persecution.

“It’s going to be extremely important for the Canadian government to stand very clearly behind Canada’s belief in international rights for refugees, in the fundamental right to asylum and in demonstrating that we have a different way in Canada,” Sreenivasan said.

With files from The Associated Press.

This report by The Canadian Press was first published Jan. 22, 2025

David Baxter, The Canadian Press