Protestors gather during a rally for trans rights in Edmonton, in February, 2024. Since U.S. President Donald Trump decreed that the U.S. government now only recognizes two genders, Canadian immigration lawyers have seen a surge of inquiries from transgender Americans about how to move to Canada.AMBER BRACKEN/The Canadian Press
Canadian immigration lawyers say they are being inundated with inquiries from transgender Americans about how to move to Canada, including whether they could claim asylum on grounds of persecution by the U.S. government.
The demand is escalating as Ottawa faces pressure from LGBTQ Canadians and the NDP to issue a travel advisory warning transgender and non-binary Canadians about the risks of travelling south of the border, as some European countries have.
U.S. President Donald Trump has decreed that the U.S. government now only recognizes two genders and has stopped issuing passports and identity cards with an X gender marker to trans and non-binary Americans. The Trump administration has also abolished the U.S. government’s diversity, equity and inclusion departments and signed executive orders designed to exclude transgender people from the U.S. military and restrict their participation in sports.
Some immigration lawyers have been hosting online seminars for LGBTQ communities on navigating Canadian immigration to address the volume of inquiries. One last month, attended by 62 people, was dominated by questions about asylum claims from transgender Americans.
Immigration lawyer Yameena Ansari, who gave a presentation at the seminar, said her law practice is overwhelmed with such questions because of Mr. Trump’s policies.
She said trans and non-binary Americans could have a strong case for asylum on the grounds that the U.S. is no longer a safe country for them. “Not allowing someone to identify by their correct gender marker isn’t just discrimination, it’s a form of violence,” she said.
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Under the Safe Third Country Agreement with the U.S., which came into effect in 2004, asylum seekers must make a claim at the first country in which they arrive. The agreement means that most asylum seekers arriving at the Canadian border are automatically returned to the U.S., with some exceptions, such as people facing the death penalty.
A number of immigration lawyers say there are now strong grounds for Canada to create an exception for trans foreigners living in the United States to allow them to claim asylum here. Under the agreement, asylum-seekers who come from the United States and who have been in Canada for 14 days are able to claim asylum.
Warda Shazadi Meighen said she thinks the Immigration and Refugee Board, an independent tribunal that adjudicates on refugee claims in Canada, will take into account the actions of the U.S. government when hearing an asylum claim from a U.S. citizen.
“We are receiving numerous inquiries from U.S. nationals, including many trans individuals, who are not longer feeling safe at home,” she said. “International refugee protection is a last-resort option, granted only when a person’s home country is no longer safe. Claimants must show a serious fear of persecution based on who they are – which certainly includes trans identity. If that fear stems from U.S. state action or inaction, the state is considered the agent of persecution, and the claimant isn’t required to show they first sought protection from the authorities.”
Immigration lawyer Maureen Silcoff said most of the inquiries she has received are from parents of trans or non-binary children.
“They are very frightened for their children and are desperate to protect them from the increasing threats to their very being by the Trump administration,” she said.
Immigration lawyer Melissa Babel said she has also received a lot of inquiries from transgender Americans, as well as Americans with transgender children.
They include two married American physicians with a transgender child who want to relocate to Canada owing to the Trump administration’s edicts on gender.
About 3,600 Canadians have X on their passport in place of male or female, according to IRCC. The U.S. says that its border agents will recognize Canadian passports with an X.
But transgender advocate Fae Johnstone, executive director of advocacy group Queer Momentum, urged Ottawa to update its travel advisory to warn transgender and non-binary Canadians planning to cross the border that they may face problems in the U.S., following the lead of Denmark, the Netherlands, Finland, Ireland and Germany.
“You have an American government that has instituted an existential assault on our existence, and a Canadian government barely able to mention it,” Ms. Johnstone said. “I am disgusted that the government hasn’t issued a specific update to the travel advisory to address the increased risk.”
Avi Kuttner, former interim leader of the Green party, on Parliament Hill, Ottawa, in April, 2022. They say Ottawa should swiftly issue a travel advisory for trans people travelling to the U.S.Sean Kilpatrick/The Canadian Press
Avi Kuttner, former interim leader of the Green Party who is a transgender person, said they do not think the “U.S. is safe for trans people” and that Ottawa should swiftly issue a travel advisory.
NDP candidate for Edmonton Griesbach, Blake Desjarlais, who is a Two-Spirit person, said “New Democrats strongly urge the government to do everything necessary to ensure trans Canadians are safe and have the information they need when they travel abroad.”
Global Affairs Canada last week issued an update to its official travel advisory to the U.S., warning of an increased risk of detention and the possibility of “scrutiny” from border guards.
It previously issued generic advice for transgender and non-binary Canadians that “foreign laws and customs related to sexual orientation, gender identity, gender expression and sex characteristics can be very different from those in Canada. As a result, you could face certain barriers and risks when you travel outside Canada.”
It has not specifically issued a travel advisory to the U.S. for transgender travellers.
“Global Affairs Canada is aware of the United States’ Executive Order regarding gender on government issued identification,” said John Babcock, a spokesperson for GAC. “Canadian officials are monitoring the situation closely for impacts on Canadian travellers.”
Editor’s note: A previous version of this article incorrectly stated that an exception to the Safe Third Country Agreement could create an exception for trans Americans to claim asylum in Canada. The agreement does not apply to citizens or habitual residents of the U.S. In the context of this article, it would apply to people entering Canada through the United States. This version has been updated.