In the three weeks since it went live, over 27,000 people have signed an online petition calling “upon the House of Commons to extend to transgender and non-binary people the right to claim asylum in Canada by reason of eliminationist laws in their home countries.”
The petition cites as an example of such eliminationist laws the anticipated changes to the U.K.’s Equality Act to remove protections for trans people. It also points to the wave of anti-trans legislation sweeping conservative U.S. states.
According to the petition, all of this is evidence that “the world is becoming increasingly hostile to transgender and non-binary individuals,” including in “the so-called ‘Western democracies,’ which have historically been presumed safe.”
Canada, by contrast, “has prided itself on being an inclusive, tolerant and welcoming society for everyone regardless of gender identity or gender expression,” the petition reads. The country can therefore act as a safe harbour for trans and non-binary people fleeing state-sponsored discrimination.
The petition was initiated by Waterloo, Ontario, resident Caitlin Glasson. “I picked a petition as the approach as a means of directly approaching the government with something I feel is urgent and important,” Glasson said in a media release. “The reality is, without urgent action, trans people will be losing their lives. I’ve lost too many to let that keep going on.”
Mike Morrice, Member of Parliament for Kitchener Centre and the petition’s parliamentary authorizer, says the petition “is currently the most supported of any open right now on the House of Commons website.”
Petitions that garner at least 500 signatures may be presented to the House of Commons by any member. “The more widely [this petition] is supported,” Morrice explained in an interview with Xtra, “the more likely we are to see the governing party support it.”
The petition has garnered considerable interest on Twitter. Activist and Xtra contributor Erin Reed shared it to her more-than 100,000 followers with instructions for Canadians to “Go sign.”
When asked about the petition, Reed says, “For a long time, I didn’t know how I felt about the whole ‘Let’s go to Canada and get out of the United States’ stuff” floating around some trans and non-binary circles.
Then Texas started investigating the parents of trans children for child abuse and she saw people fleeing the state, including child activist Kai Shappley.
“I’m seeing … people fleeing anti-trans laws,” Reed says. “They’re running away. I’ve got more messages in my inbox than I can count. Parents who are saying, ‘Is now the time to leave? Do I need to get out of this state?’ And recently, I’m getting messages from people saying, ‘Is now the time to leave … the United States as a whole? Because they see Donald Trump, they see Ron DeSantis, pushing policies that if enacted would result in nationwide bans.”
“Parents,” she explains, “know what a ban would mean to their kids, too many of them were suicidal before starting gender-affirming care…. And they are wanting a place to go. They want a place of safety.”
In the end, Reed says, “it is better to be proactive about ensuring” that refugee processes are open to trans people than to be “reactive, and reacting after the fact.” She supports the petition because she “sees what’s coming. I see what’s happening now.”
It’s time for countries like Canada to act.
Trans and non-binary people seeking asylum in Canada would still need to clear a number of legal hurdles even if the House of Commons chooses to enact the petition’s request. One problem will be establishing impact.
According to University of Victoria law professor Asad Kiyani, who spoke to Xtra via email, “Discriminatory laws (and laws that purport to combat discrimination) are things that are routinely taken into account” by Canadian officials adjudicating refugee claims. The petition is, in other words, asking Parliament to direct immigration officials to do something they should already be doing.
Even if the petition becomes law, trans and non-binary individuals seeking asylum in Canada will need to do more than simply point to the existence of these discriminatory laws in order to succeed. They will need to prove that the law is having a discriminatory impact on their day-to-day lives. “Connections to discriminatory law help support the case,” says Kiyani, “but it is the individual’s experience that is paramount.”
Now, that should be more than doable.
Taking someone’s child away has a direct and irremediable impact on parents, Reed points out, and that’s exactly what some of these anti-trans laws propose to do. “Withdrawal from medical care is extremely serious,” she says, and “the physical and mental health impacts of this legislation do result in the loss of life…. In terms of discriminatory impact, the elimination of your medical care, the elimination of your ability to find safety and security within the family unit, the elimination of all legal protections—all these things have an enormous impact on transgender people, on our families, and that impact is manifested in how transgender people feel we are able to exist within the United States, how we’re able to physically live in some cases, and how we’re able to take care of our children.”
Another, and perhaps bigger, problem is what’s known in Canadian immigration law as “internal flight alternatives.”
“This basically asks if there is another part of the country where there is not a serious possibility of persecution, and that it would not be unduly harsh to expect the claimant to move to,” explains Kiyani. “As an example, if a claimant is from Oklahoma—which has passed a number of anti-trans laws in recent times—could they be safe in another state? Say Colorado or—a little farther along—Nevada? And would it be unduly harsh to expect them to move to Colorado? To Nevada?”
So even if a trans or non-binary person can prove discrimination, they will still need to establish that there are no places in their home country where they could safely move. And the petition does nothing to change this.
I spoke with several trans Americans contemplating relocation to Canada. A consistent theme in their responses was the lack of federal protections for trans and non-binary individuals in their home country.
Alana McLaughlin, a trans MMA fighter based in Portland, Oregon, says that “While there are liberal states, at the federal level, protections are already severely lacking, and given the right-wing takeover of our Supreme Court and the clearly stated intention from the Republican Party to eradicate trans people from public life, people are scared.” Moving to Canada is simply a matter of survival for her.
Nicola J., a trans woman in New York state, expresses similar sentiments. “[The] current direction of the U.S. makes it feel that state-level protections aren’t enough. I live in New York [state] now and it feels like things could change here with a flip of the coin,” she says.
Reed frames matters even more bluntly. “Right now, there are states … passing ‘safe state’ laws. These are laws that limit the ability of state investigations to stretch across state borders…. Those laws are, unfortunately, unlikely to hold up in court because of the [U.S. Constitution’s] full faith and credit clause,” which requires courts to respect the laws and judicial decisions of other states. This means that if a court takes a trans child away from their parents in one state, as could happen under a law currently being considered in Tennessee that defines gender-affirming care as child abuse, parents who flee to another state would face extradition back home.
“The only thing that [those parents] can do, if they want to protect their kid, would be to go to … a country where they won’t be extradited because they’ve claimed asylum.”
Internal flight alternatives simply do not exist.
Now, these legal hurdles can be overcome. But even if they are, not everyone agrees that Canada is the safe harbour for trans and non-binary people that it aspires to be.
In a Twitter thread commenting on the petition, Reverend Junia Joplin of the Metropolitan Church of Toronto observes that Canada only looks good as a destination for trans and non-binary people because the situation is so dire elsewhere.
Canadian governments are “shutting down clinics, cutting health funding for gender-affirming care and, in some provinces, pausing it altogether,” she notes. “Most trans folks in Canada earn poverty wages. Half or more report that their mental health isn’t good. In Ontario, almost half are living with unmet medical needs.”
In an interview with Xtra, Joplin says, “I would hate to think that a trans woman might move from the [United] States to Canada only to find they can’t get in to see a doctor who’ll prescribe hormones and that their healthcare coverage doesn’t include breast augmentation anymore.
“My advice to Americans thinking of coming to Canada for refuge would be to check other states first. If you’re a trans woman,” she continues, “you’re probably better off moving to California than to Ontario.” Last year, California became the first sanctuary state for trans American youth, meaning among other things that California doctors are free not to disclose a trans youth’s medical information “if the request is made in relation to a law prohibiting gender-affirming care.” But whether such laws will be effective in protecting trans people is an open constitutional question.
It is Canadian exceptionalism to think that Canada is exempt from anti-trans hate and discrimination. Transphobia is on the rise here, too, thanks in no small part to ongoing TERF misinformation campaigns. And it’s winning the backing of right-wing political parties like Ontario’s Progressive Conservative government.
Canada has strong human rights protections for trans and non-binary people at both the federal and provincial levels. The Canadian Human Rights Act prohibits discrimination on the basis of “gender identity or expression,” as does provincial legislation like the Alberta Human Rights Act. And, of course, Canada’s great constitutional achievement—the Charter of Rights and Freedoms—promises equality on the basis of sex.
Canada looks good on paper. But are our protections just paper-thin? The answer, as usual in matters of law, is maybe.
I spoke with Fae Johnstone, executive director of social-justice consulting firm Wisdom2Action and a fellow Xtra contributor, about Canada’s vulnerability to the sort of anti-trans organizing and legislative action we are currently seeing in the U.S.
She explains that “in Canada, despite more right-wing media interest in trans issues, and greater mobilization by anti-trans groups, such groups have had minimal success finding legislative champions. That lack of engagement from mainstream politicians and political parties is a key differentiating factor” between this country and its southern neighbour.
“In essence,” they go on, “we are in a better place than the U.S., and at less risk of legislation restricting trans people’s rights, healthcare or safety—but that doesn’t mean we aren’t still in a precarious position. Anti-trans hate surged in the U.S. before it surged here, as we’re often influenced by political shifts in the U.S., albeit with a delay. So while we’re in a better position now, who knows where we’ll be in four to five years.”
Who indeed.
Canada is not a gender-inclusive utopia. Our laws are only as strong as the people who make and enforce them. And if the political winds shift, as they are wont to do, Canada’s trans population might well end up facing the same eliminationist policies as our American siblings.
The problem is not accepting trans and non-binary people as refugees. To the extent that Canada is a safer destination than those people’s home countries, this is a policy we can and should pursue.
The problem is thinking that Canada is “already there” when it comes to trans rights. That the fight for the full inclusion of trans and non-binary people in Canadian society is over and done with. That we can complacently trust existing laws to protect us from the rising tide of anti-trans hate.
If Canada is indeed to be a safe harbour for the U.S. and U.K.’s trans and non-binary population, it will be because we make and keep it that way. Which is just another way of saying that the time is now—not when conservative politicians finally take notice of us—to organize and agitate for gender-affirming policies and legislation that live up to the highest ideals of our nation and the dreams of those who seek the safety of our shores.
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