The last thing Naomi Chen’s wife said to her before she fled Hong Kong was “don’t cry too much — Canada is the place where you can live as who you are.”
But this, it turns out, was untrue for Chen, a trans woman who says she was persecuted in Hong Kong because of her gender.
After arriving in Toronto Chen made a refugee claim and was then told by Canadian immigration officials she must be identified as “male” on her refugee protection claimant document, her only valid piece of identification in Canada.
Global News has agreed to use a pseudonym for Chen because of fears she could be persecuted if sent back to Hong Kong.
“I was stunned. I was crying. I was distressed,” Chen said. “This is not something I expected.”
According to government policy, all information on an asylum seeker’s immigration documents “must reflect what is indicated on their foreign passport.”
This is true even in cases such as Chen’s, where a person receives hormone therapy, has undergone gender confirmation surgery, and where their lived gender no longer conforms with the sex they were assigned at birth.
It’s also true for all temporary resident documents issued by the government, including work and study permits.
“It’s discrimination,” Chen said.
Since coming to Canada, Chen has felt isolated and dreads leaving her apartment because she might be asked to show her ID that says she’s a man, essentially outing her as a trans woman.
She also said being misgendered by the Canadian government makes her feel less valued than other people.
“I’m so afraid to live as a woman here,” she said.
Right to self-identify
The Canadian Human Rights Act prohibits discrimination based on: sex, race, national or ethnic origin, sexual orientation and gender identity.
The Ontario Human Rights Code also prohibits discrimination on the basis of sex or gender identity.
“A person’s self-defined gender identity is one of the most basic aspects of self-determination, dignity and freedom,” reads an Ontario Human Rights Commission policy on preventing discrimination based on gender identity and expression.
“For legal and social purposes, a person whose gender identity is different from their birth-assigned sex should be treated according to their lived gender.”
The federal government allows citizens, permanent residents and refugees whose claims are accepted, meaning they’re allowed to stay in Canada permanently, to change their sex or “gender identifier” on official travel documents, such as a passport or permanent resident card, by completing a one-page form.
Yet for refugee claimants whose cases have not yet been decided — even those whose claims are based solely on alleged persecution due to their status as an intersex or LGBTQ2 person — the only way they can change their documents to reflect their lived gender is if they first change the information on their foreign passport, according to Immigration, Refugees and Citizenship Canada’s policy.
But this is impossible in Chen’s case because she fled Hong Kong due to the persecution she experienced there, including the alleged theft of her business by family members after she came out as a trans woman.
Chen married a woman in Hong Kong before she transitioned. And because same-sex marriage is illegal in Hong Kong, even if she were able to change her original passport, which she can’t, she fears this would invalidate her marriage.
“It’s simply unconscionable that the Canadian government would knowingly contribute to a process that discriminates against individuals based on their gender identity and gender expression,” said Chen’s lawyer, Ashley Fisch.
Fisch also believes the government’s policy violates Canada’s Charter of Rights and Freedoms by failing to provide “equal treatment under the law” for trans and gender diverse refugee claimants and by perpetuating the types of hardships they’re forced to endure in other countries.
“I just feel sorry for the poor woman,” said Amanda Ryan, outreach committee chair for Gender Mosaic, an Ottawa-based trans support organization.
Ryan believes recent changes to federal human rights law could be a basis for extending the right to self-identify to refugee claimants and temporary residents. She said education — both in and outside government — is key to expanding protections for the trans community.
“When you start talking to people and they start learning about trans issues, there’s an awful lot of sympathy and understanding for us,” Ryan said.
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“People that don’t have to deal with a trans person simply don’t have that information. That’s ignorance in the true sense of the word.”
Trans and intersex refugees at greater risk
After arriving in Canada and undergoing initial screening to determine if they are eligible to make an asylum claim, would-be refugees are given their refugee ID, which must conform with their foreign passport.
Claimants must then submit their formal claim to the Immigration and Refugee Board of Canada (IRB).
The required paperwork asks claimants what sex appears on their foreign passport. However, contrary to Immigration Canada’s policy, claimants are told they can self-identify on IRB documents if their passport does not conform with their lived gender.
IRB adjudicators are instructed to refer to claimants by their correct pronouns, including in written decisions, even if this does not match their foreign passport. The Board’s guidelines also acknowledge that not recognizing a person’s lived gender can lead to serious consequences.
“Trans and intersex individuals may be particularly vulnerable to systemic discrimination and acts of violence due to their non-conformity with socially accepted norms,” the guidelines say.
Dr. June Lam, a psychiatrist at the adult gender identity clinic at Toronto’s Centre of Addiction and Mental Health, said misgendering trans and gender diverse people can contribute to negative mental health outcomes, including increased suicidal thoughts and actions.
“It’s like we’re recreating the systemic oppression that they’re trying to escape by coming to Canada,” Lam said.
“These barriers really reinforce that even our society views their life, their identity as less valuable.”
While Lam believes Canada is generally a much safer place for LGBTQ2 people than many other countries around the world, he said being forced to use an ID that outs someone as having a different birth-assigned sex than their lived gender puts them at greater risk of physical and psychological harm.
He also cites research that found having a government-issued ID that reflects a person’s lived gender significantly reduces the likelihood of suicidal thoughts and actions among trans and gender diverse people.
“It’s almost like transgender folks have to prove themselves over and over again before our government and our society believes they are who they are,” he said.
Policy sometimes ignored
When Chen was first issued her refugee ID she was told in person by the Canada Border Services Agency that it must conform with her Hong Kong passport, in accordance with government policy.
Chen’s lawyer then sent a letter to the government requesting the ID be reissued with her correct gender, but the request was denied.
“We regret to inform you that refugee claimants are not able to request a change in gender,” a manager from Immigration Canada wrote.
But nearly identical requests have been accepted in the past, said Adrienne Smith, a Toronto immigration lawyer who specializes in LGBTQ2 refugee claims.
Smith knows this because the letter Chen’s lawyer sent the government was based on a template she wrote several years ago. Smith said she’s used this letter on multiple occasions to persuade immigration officials to issue documents in a claimant’s lived gender.
“It just doesn’t make any sense,” Smith said. “A trans refugee claimant shouldn’t need to have a lawyer that understands trans-specific issues in order to get access to a basic right.”
Global News asked the government to explain why refugee claimants’ documents must reflect the information on their foreign passports and whether this policy systemically discriminates against trans and non-binary asylum seekers. The government did not answer either of these questions.
The government also did not say whether it believes that insisting that non- Canadian citizens and temporary residents be issued documents that don’t align with their lived gender violates the Charter of Rights and Freedoms.
“Everyone should be free to lead happy and authentic lives in Canada, regardless of how they identify, or who they love,” said Kevin Lemkay, a spokesperson for Immigration Minister Marco Mendicino.
Lemkay said the minister has made reviewing gender identity requirements for government-issued documents a priority. This includes the refugee protection claimant document.
The government has also passed legislation, including changes to the Canadian Human Rights Act, that make it illegal to discriminate based on gender identity and expression, while introducing the “X” gender marker on passports and permanent resident cards.
“We remain steadfast in our dedication to inclusion and equality,” Lemkay said.
Despite being misgendered by the government, Chen is determined to remain in Canada. She believes Canada is a place where she can live a life free from the type of persecution she experienced in Hong Kong.
She also hopes that one day she’ll be reunited with her wife — who was denied an entry visa to Canada because of questions about the purpose of her visit, and who does not have a Hong Kong passport, which would exempt her from visa requirements — and that they’ll be able to live together in a same-sex marriage.
“I came to Canada for the freedom of my soul,” Chen said.