Canada Must Act: Make an Exception for Trans, Non-Binary & Intersex Asylum Seekers Under the Safe Third Country Agreement

Rainbow Railroad joins refugee and LGBTQI+ rights advocacy groups calling for the Minister of Immigration to make an exception to the Safe Third Country Agreement (STCA) for transgender, non-binary, and intersex refugee claimants in the U.S. to seek asylum in Canada.  

Trump’s first suite of Executive Orders threatens and endangers trans people and asylum seekers. “Defending Women From Gender Ideology Extremism” forwards an anti-science view that the U.S. will recognize only two sexes, and attempts to erase the lived realities of trans, intersex, and non-binary people. 

Within 24 hours of taking office, President Trump signed an executive order suspending the U.S. Refugee Admission Program, halting the processing of all refugees already approved for resettlement – including LGBTQI+ refugees, leaving displaced queer and trans individuals stranded in precarious conditions awaiting resettlement. For many queer and trans refugees, resettlement to a third country is their only opportunity to find safety, as they can face continued violence at refugee camps. Further, the order “Protecting the American People Against Invasion” expands the categories of individuals who are eligible for expedited removal – deportation without the ability to be seen by an immigration judge. Any noncitizen found anywhere in the United States who cannot prove to the satisfaction of a U.S. Immigration and Customs Enforcement (ICE) agent that they have been in the country for more than two years, and have a credible fear of persecution, can be deported immediately. 

These anti-gender and anti-asylum directives compound, putting LGBTQI+ people seeking asylum under extreme scrutiny, and hindering their right to safety and protection. This extremist agenda means that trans women seeking asylum will experience acute danger if they are detained by immigration enforcement, including being forcibly placed with cisgender men, denied access to gender-affirming healthcare and identity documents, and be at risk of direct violence from immigration officials and other detainees. Intersex, trans and non-binary people who currently have pending asylum claims may be at risk of deportation, and we are asking the Canadian government to consider these circumstances and uphold the right to seek asylum.

Rainbow Railroad acted as intervener when the constitutionality of the STCA was challenged before the Supreme Court of Canada in 2023, on the basis that returning asylum seekers to the U.S. exposed them to the very real risk of being deported from the U.S. to a country where they may face torture, violating the fundamental principle of non-refoulement. The recent “gender ideology” Executive Order adds a new dimension of risk for trans, non-binary and intersex asylum seekers, who if detained, would experience conditions that fundamentally violate their safety. In the coming months, as the Federal Court prepares to reconsider whether the STCA discriminates against certain groups, it must closely examine these new, intensified dimensions of risk for trans, non-binary and intersex asylum seekers. 

Amidst the rapidly deteriorating human rights landscape in the U.S., uniquely Canadian pathways must be protected. In 2023, the Government of Canada created a partnership with Rainbow Railroad to identify and refer at-risk LGBTQI+ refugees through the Government-Assisted Refugees (GAR) Program. Through this program, Rainbow Railroad has been referring individuals for safe resettlement to Canada, and this specialized pathway continues to emerge as a lifeline for some of the most urgent and harrowing cases of LGBTQI+ persecution in the world. As more world leaders politicize and turn against human rights, Canada must continue to prioritize Canadian values on the world stage, and act as a safe haven for those seeking safety from persecution on the basis of their LGBTQI+ identity. 

In line with this demonstrated leadership protecting LGBTQI+ rights globally under the GAR program, Rainbow Railroad calls on Canada to urgently create an exception for intersex, transgender, and non-binary asylum seekers under the STCA.