Should Canada Give Asylum to Trans Americans?

For trans people living in America, Donald Trump’s second presidency has been the dystopian nightmare that never ends. In the early hours of his second administration, POTUS doubled down on anti-trans rhetoric, signed an executive order to recognize only two sexes and singled out the transgender community in his inaugural address. Over the past several months, Yameena Ansari, a Toronto lawyer who specializes in complicated claims for LGBTQ+ people all over the world, has heard from a growing number of transgender Americans who want to know more about claiming asylum in Canada.

Ansari is currently representing Hannah Kreager, a 22-year-old trans woman from Arizona who has been living in Calgary since April. Last month, Kreager made an asylum claim with the Immigration and Refugee Board of Canada based on the fear of persecution in her home country. The case could be a landmark judgement with far-reaching implications. Here, Ansari talks to Maclean’s about the legal strategy behind her client’s claim and why there is currently no state in America where it’s safe to be trans. 

The Trump administration didn’t waste much time aggressively legislating against trans people. Did you start hearing from potential clients right away? 

This was a hot topic among immigration lawyers even before Trump took office. He used a lot of anti-trans rhetoric during the campaign, but it wasn’t clear to us if this was just bluster to court a certain kind of voter. We got our answer pretty quickly when his inaugural address included comments about how there are “only two genders” in America, followed by various executive orders that banned trans girls and women from federally funded athletics, that required passports to reflect sex at birth rather than gender, and that banned trans individuals from serving in the military. This open hostility from the president prompted a lot of people to reach out about relocating to Canada. 

What kinds of stories have you been hearing?

There is a lot of concern about access to gender-affirming health care. I’ve heard from trans people who believe that Trump has emboldened Americans to lash out against them and who now fear the general public. Even naturalized citizens—people who’ve legally become Americans—fear being deported. Despite holding U.S. passports, some worry that ICE could target them under the guise of “improper” documentation. A year ago I would have said that was a bit alarmist, but now Trump is floating that plan. It’s hard to overstate how surreal this moment feels. 

What are the first steps in considering an asylum claim? 

We start by asking about past experiences of harm as well as fears of future persecution to determine whether those are covered by one of the protected grounds under Canadian refugee law. The legal threshold is extremely rigorous, and it’s neither a short process nor a cheap one. We’re talking one or two years and up to $15,000 in fees. The other factor to consider is the emotional cost. When Hannah Kreager first contacted me in April, we talked about the kind of exposure a case like this could bring with no guarantees of success. But she was adamant that she was doing this, not just for herself but for her entire community that has become so vulnerable. 

Can you tell us about Hannah’s story?

She’s a trans woman who was living in Arizona. Several months ago, she started hearing rumours that Trump could invoke the Insurrection Act of 1807, which could lead to martial law. She was worried because her birth certificate had not been updated to reflect her trans identity. What would happen if she got stopped and couldn’t produce identification? This was one of many concerns around safety that she expressed during our early conversations. In April, she crossed into Canada, and we lodged her asylum claim last month.

What is the legal argument behind this claim? 

Section 67 of Canada’s Immigration and Refugee Protection Act states that a refugee is a person who has a well-founded fear of persecution. The “well-founded” part is key. It means your claim has to be substantiated under a specific list based on reasons of race, religion, nationality or membership in a particular social group or political opinion. You’ll notice that sexual orientation and gender identity don’t appear on that list. 

In Hannah’s case, we plan to argue that being a trans individual makes her part of a persecuted social group. We’ll do that by presenting case law—prior rulings by courts or tribunals that interpret the laws. So, for example, a federal judge recently ruled that transgender individuals can obtain passports in accordance with their gender, but Trump’s State Department has ignored that ruling. In other words, the U.S. government is actively undermining trans rights, even when the courts have supported them. These types of outcomes shape how we argue Canadian asylum cases, particularly when demonstrating that state protection in the U.S. is no longer effective for trans individuals. There is also Section 97 of the IRPA, where the claimant can argue that if they were sent back home, they would be subject to cruel and unusual punishment or torture. 

Could a trans person coming from the U.S. argue that they might be subject to cruel and unusual circumstances under the current administration?

We’ve definitely considered this argument. Texas recently proposed legislation that would make it illegal to identify as trans on official documents. If Hannah were in prison, she could be denied gender-affirming care and jailed according to her sex assigned at birth rather than gender, which could obviously be dangerous. In this case we’re focused on a forward-looking risk: what could happen if she were sent back. 

Unlike many of my clients, Hannah comes from a supportive and loving community, which gives us less to play with in terms of demonstrating risk. I’ve had LGBTQ+ clients who have been thrown out of their homes or beaten by family members. They’re missing teeth or covered in scars. They’ve been sent to conversion camps. Hannah’s situation is different, but that’s part of what makes it so important. She’s just a normal woman living her life in the U.S. with a family that loves her. The potential harms she’s facing are those that any trans woman could experience. 

Will you present specific instances of anti-trans violence in the U.S. as evidence? 

Absolutely. One of the fears that Hannah mentioned during our first meeting was that she would go into a public women’s washroom and that another woman’s husband using the washroom would be waiting outside and confront her. Incidents like this have been well-documented. As soon as Trump announced his anti-DEI executive orders, there were cops detaining trans women as well as cisgender women who failed to meet certain standards of femininity. In our claim we reference a specific incident that happened at a Walmart in Tucson, where a sheriff forced a woman to lift up her shirt and then still refused to believe she was a woman. 

A lot of these incidents and anti-queer legislation are happening in right-leaning states. Could Hannah not relocate to California? New York? 

This touches on what’s known as “internal flight alternatives”—the idea that a refugee could simply relocate to a safer part of their country. In Hannah’s case, disproving that notion will be a key part of our argument. I plan to demonstrate that there is no state where my client could currently be safe. For instance, the laws surrounding passports are federal, so there is nowhere that Hannah can go right now to get a legal document that reflects her gender identity. I would call that persecution. 

Canada has a Safe Third Country Agreement with the U.S. What is the purpose of the agreement and how is it relevant to trans people living in America?  

The idea is that we recognize each other as safe nations, so refugees cannot seek protection in Canada if they have already entered the U.S. and vice versa. Hannah was born and raised in the U.S., so the agreement doesn’t necessarily apply to citizens like her, but I do think it plays in. For so long we have had a shared border and a relationship with the States based on this idea that both places are safe. To be totally honest, I had that bias. When Hannah first came to me, a lot of my instincts were based on a preconception of America as a safe place. It was only when my team started to pull claims that we realized how much that was no longer true. That’s when my heart and mind really opened up. Just on the facts alone, I think the situation in the U.S. is comparable to places like East Africa, Central Africa and the Middle East. I have argued successfully for clients from all of those regions. 

You mentioned the precedent-setting nature of this case. If you are successful, what might that look like? 

It could mean a massive influx of asylum seekers at our doorstep. Rainbow Railroad, a global LGBTQ+ aid organization, has reported a massive uptick in Americans looking to come to Canada since Trump took office: up 1,100 per cent since last year.   

Immigration is already a massively controversial issue in Canada. What do you say to people who think an influx is not in our country’s best interest?

Immigration isn’t the problem—poor planning is. My clients bring critical skills in construction, caregiving, education and healthcare. They’re not a drain; they’re helping fill gaps in the sectors Canadians are most concerned about. But newcomers must be plugged into those gaps effectively. We have the opportunity to design a smart, ethical immigration system that strikes a balance between compassion and sustainability. A system that benefits the people already here and the newcomers.

This interview has been edited for length and clarity.