Same Sex

Same-Sex Immigration for Gay and Lesbian

Canada refugee system for protection of gays and lesbians and cross genders

If you are from India and are facing persecution, violence or threats because you are lesbian, gay, bisexual, transsexual, transgender or intersex (LGBTI), or because others perceive you to be, and you are considering seeking protection in Canada, then this web page will provide information on what is involved with making a refugee protection claim in Canada.

Our compassion and fairness are a source of great pride for Canadians. These values are at the core of our domestic refugee protection system and our Resettlement Assistance Program. Both programs have long been praised by the United Nations Refugee Agency (UNHCR).

Refugees are people who have left their countries because of a well-founded fear of persecution, and who are therefore unable to return home. Canada refugee programme protects many persons including gays and lesbians who face persecution in their country. A refugee is different from an immigrant, in that an immigrant is a person who chooses to settle permanently in another country. Refugees are forced to seek protection. Canada resettles refugees to save lives and to provide stability to those fleeing persecution who have no hope of relief. Canada’s resettlement programs are respected internationally because they provide permanent residence as a long term solution.

Canadian refugee protection programs

The Canadian refugee system has two main parts:

  • The Refugee and Humanitarian Resettlement Program, for people seeking protection from outside Canada; and
  • The In-Canada Asylum Program for people making refugee protection claims from within Canada.

Current situation in India

Lesbian, gay, bisexual and transgender (LGBT) people in India face legal and social difficulties not experienced by non-LGBT persons. Sexual activity between two persons of the same sex is criminalised, and is punishable by incarceration. India does, however, legally recognise Hijras as a gender separate from men or women, making the country one of the few in the world to legally recognise a third gender.

Law regarding same-sex sexual activity

Homosexual intercourse was made a criminal offence under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature with a man, woman or animal and can be punished with up to a life term"

In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

According to a ruling by the Indian Supreme Court, decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction However, even there have been incidents of harassment of homosexual groups.

On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral. The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. This resulted in two judges of the Supreme Court reprimanding the central government for frequently changing its stand on the issue. "Don't make a mockery of the system and don't waste the court's time," an apex court judge told the government.

On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction. The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that parliament should debate and decide on the matter.

On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC. In explaining the ruling the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21. Human rights groups expressed worries that this would render homosexual couples vulnerable to police harassment, saying: "The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination" The Naz Foundation (India) Trust stated that it would file a petition for review of the court's decision.

Alienated from Family and Friends

Marginalization and Social Alienation: Marginalization is at the core of exclusion from fulfilling and full social lives at individual, interpersonal and societal levels. People who are marginalized have relatively little control over their lives and the resources available to them; they may become stigmatized and are often at the receiving end of negative public attitudes. Their opportunities to make social contributions may be limited and they may develop low self-confidence and self esteem and may become isolated.

Social policies and practices may mean they have relatively limited access to valued social resources such as education and health services,housing, income, leisure activities and work. The impacts of marginalization, in terms of social exclusion, are similar, whatever the origins and processes of marginalization, irrespective of whether these are to be located in social attitudes (such as towards impairment, sexuality, ethnicity and so on) or social circumstance (such as closure of workplaces, absence of affordable housing and so on). LGBT individuals may experience multiple forms of marginalization-such as racism, sexism, poverty or other factors – alongside homophobia or transphobia that have a negative impact on mental health. The stigma attached to sexual orientation and gender identity or expression that fall outside the expected heterosexual, non-transgender norm relegates many LGBT people to the margins of society. This marginalization often excludes LGBT people from many support structures, often including their own families, leaving them with little access to services many others take for granted, such as medical care, justice and legal services, and education. Marginalization and bias around sexual orientation and gender identity and expression regularly prevent LGBT people from accessing fundamental public services such as health care and housing and contributes to significant health disparities.

Marginalization of LGBT people often starts with the family into which they were born. According to one study, approximately 30 percent of LGBT youth in the U.S. have been physically abused by family members because of their sexual orientation, gender or expression. In addition to this,LGBT youth are estimated to comprise up to 40 percent of the homeless population in the U.S. The familial marginalization of LGBT youth hinders initial prevention and education efforts, encourages risk-taking behavior that can lead to HIV infection, and places obstacles in the way of receiving proper medical treatment and psychosocial support for LGBT youth already living with HIV/AIDS. Moreover, lacking other means of support, many LGBT youth are forced to turn to criminalized activities such as sex work to survive, which drives them further onto the margins of society and can expose them to greatly elevated risk for HIV.

Impact of Exclusion and Discrimination

The exclusion and discrimination have major impacts on the lives of lesbian, gay and transgender persons. This has resulted in the following

  • Dropping out of school earlier
  • Leaving Home and Family
  • Unable to find regular jobs, have less options than others.
  • Being ignored in the community and isolated
  • Unable to access various services and Unaware of what they are entitled to
  • Lack of family and social support
  • Migrate to other countries for seeking safer livelihood and acceptance
  • Rejected from Religion (esp) Muslim and some Christian Fundamentalist sects)
  • Attempt suicide
  • Decide to follow their parents to marry opposite sex and then divorce.

In-Canada Asylum Program

Refugees come from around the world and many make their claims in Canada. The number of people arriving varies from year to year. In 2014, more than 13,500 people came to Canada and made an asylum claim.

The asylum program works to provide refugee protection to people in Canada who have a well-founded fear of persecution or are at risk of torture, or cruel or unusual punishment in their home countries.

CITRN Legal Services

  • Screen potential claimants to determine the genuineness of the claim
  • Consult and advise on the programme
  • Apply for temporary visa for the applicant to Canada to make the claim
  • Prepare specific list of documentation to support the claim with the Immigration and Refugee board.
  • Represent the client at the hearing by the immigration and refugee board
  • Represent the applicant with his permanent resident process.