The Safe Third Country Agreement (STCA) between the United States and Canada has recently appeared in public debate once again.[i] The Agreement was negotiated between the two countries as part of a series of post-September 11, 2001, measures and went into effect in 2004. The logic of this treaty is that each country judges the other as “safe” for asylum seekers, as both Canada and the United States have agreed to uphold certain obligations under the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees. Under the STCA, an asylum seeker is required to lodge their refugee claim in the first country they arrive in.[ii] Yet in July 2020, a Canadian federal court ruled that the United States is no longer a safe country for Canada to send asylum seekers back to, due to the risk of imprisonment these migrants face at American borders. In fact, the ruling deemed the STCA unconstitutional and violating migrants’ rights under both the Canadian Charter of Rights and Freedoms and Canada’s obligations under various sources of international law.[iii]
Canadian Justice Ann Marie McDonald concluded that “detainees demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims” when in the United States.[iv] I wish to use this current discourse as a springboard to consider additional calls to abandon the STCA, specifically because the United States is not a safe third country for LGBT migrants.
Former US president Donald Trump stripped the refugee resettlement program even as it existed imperfectly before him. As human rights lawyer and director of the International Refugee Assistance Project Becca Heller noted in October, “I think if Trump is re-elected, it’s the end of the US refugee program.”[v] Trump issued an executive order that allowed state and local governments to reject their obligation to accept refugees for resettlement processes; he advised Congress to bar certain refugees; he ended the quota system for refugees from various high-risk countries around the world; and he announced that refugee resettlement in the United States was at an all-time low in 2020 with only 18,000 asylum claims approved in the United States.[vi] But with the publication of Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, colloquially referred to as the “death of asylum rule,” Trump in June 2020 targeted specific groups of migrants with a rule that was scheduled to go into effect on January 10, 2021. As a federal judge halted the rule only on January 8, 2021, it remains to be seen whether the Biden administration will appeal the halt.[vii] The rule encourages local immigration courts and US Border Patrol agents to ignore the obligation to grant asylum hearings to migrants, highlighting people fleeing persecution on the basis of sexual orientation or gender identity.[viii] Also, under this rule, an asylum claim cannot be placed if a person has engaged in LGBT activism or protest in their home country without calling for a regime change. The claimant must also identify themselves as a victim of persecution based on sexual orientation or gender identity the first time they come before a judge or else they waive this right, despite the way that this requirement threatens migrants’ personal safety as they return to highly policed detention camps after their trial in many cases.[ix]
In addition to the asylum claim process, we must acknowledge that the Republican Party and other conservative, right-wing groups in the United States have slowed and even reversed the application of legal protections for LGBT citizens. The Republican Senate has enabled the transformation of courts across the country, approving the appointment of more judges under Trump than almost all of his predecessors, including a third lifetime appointment of a conservative judge to the Supreme Court bench.[x] Reporting has revealed many of these judges have displayed blatant and harmful anti-LGBT opinion. Moreover, under the Trump administration, anti-discrimination policy in workplaces as well as transgender rights in educational institutions, homeless shelters, and social services have all come under attack. Supreme Court Justices Clarence Thomas and Samuel Alito have also written that the 2015 decision that enshrined marriage equality “enables courts and governments to brand religious adherents who believe marriage equality is between one man and one woman as bigots.”[xi] Thus, beyond its refugee policies regarding LGBT claimants, the United States also fails to protect LGBT people once they have resettled in their new host country.
In contrast, Canada is a safer alternative for LGBT migrants hoping to secure asylum. Up to 70 percent of Sexual Orientation and Gender Identity Expression (SOGIE) refugee claims were accepted between 2013 and 2015 in Canada.[xii] Once granted asylum, LGBT refugees are also protected under Canadian law where American law fails them. Canadian law has enshrined more rights, for longer, across all of Canada and does not face the same political attacks as do protective laws in the United States.[xiii] Canadian courts also see far fewer challenges to legal protections for LGBT workers, anti-discrimination laws, legalization of same sex marriage, social programs, and widely accessible healthcare that can be utilized by transgender people in Canada looking for methods of medical transition, if they so wish. In general, studies find that more Canadians across the entire country are accepting of LGBT people than in the United States, where pockets of highly accepting places do exist, but wide domains of discriminatory practices, policies, and opinions prevail elsewhere in the country.[xiv]
Canada’s system is by no means perfect or even satisfactory under international refugee law. Canada is closer to fulfilling its obligations to asylum claimants than the United States, but let us be clear: the bar is low. Ottawa has created mechanisms that repel migrants when they arrive at Canadian borders, and the Trudeau administration now seeks to maintain this in its appeal of a lower court’s decision. In the meantime, Canada cannot idly wait for American politics and law to change. Biden will not fundamentally revise the American immigration system; within his first 100 days in office, he reopened a 66-acre detention center to house migrant children.[xv] Furthermore, the establishment and entrenchment of encompassing protective laws for LGBT people in the United States will take years, if not decades, and Canada cannot turn a blind eye to the nature of the United States’ laws. It is time for Canada to acknowledge the ways it has been complicit in America’s deeply harmful actions towards LGBT migrants. Abandoning the STCA with its next-door neighbor will be a break from Canada’s past reliance on its “fireproof house” approach to international policy.[xvi] But it is a necessary step the Trudeau administration must take to adhere to both domestic and international law Canadian courts have themselves highlighted in order to protect some of the most vulnerable migrants in the world: LGBT asylum seekers.