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LGBT Persecution in Mexico and Canada’s Refugee Program
Backgrounder
Current Status/Summary
Canada has preserved its humanitarian tradition through ratification of international conventions,
human rights laws, and even revising its constitution in 1982. It is obligated under the Convention
Relating to the Status of Refugees (the Convention) and the International Covenant on Civil and Political
Rights (ICCPR) to provide asylum to those who have a well-founded belief of persecution. The words of
Article 9 of the ICCPR, liberty and security of person, form the basis for sec. 7 of the Charter of Rights
and Freedoms. A report prepared by Harvard Law School’s Human Rights Program, Global Rights,
International Gay and Lesbian Human Rights Commission, and Colectivo Binni Laanu A.C., prepared for
the UN Human Rights Committee, has demonstrated how the persecution faced by LGBT people in
Mexico violate the ICCPR.1 Our obligations to protect people facing these types of persecution are
enshrined in Canada’s refugee laws, which promise to provide asylum to those who fit the definition of a
refugee under the Convention.
Recent developments in Canada’s legal system have limited access to such rights for many LGBT people
in Mexico, who face a very real threat of persecution, harassment, and violence. For reasons explained
below, the expedited procedures created by Bill C-31 allow for LGBT people with well-founded fear of
persecution to be sent back to their country of origin, where they may face persecution, violence, or
possibly death. Additionally, Canada’s Immigration and Refugee legislation currently recognized
guardianship and spousal bonds based on documentation in claimants’ country of origin. The effect is
that Canada does not recognize the family bonds of LGBT claimants from countries that discriminate
against LGBT families, such as Mexico.
Human Rights Defenders: Violence and Killings
Human rights defenders who try to advocate for LGBT rights within Mexico are at extreme risk for
violence. Javier Gómez Bastida, a transgender lawyer who was the head of a special unit for support of
the Lesbian, Gay, Bisexual, Transsexual, Transgender, Transvestite and Intersex (LGBTTTI) community in
the Attorney General’s office of the Federal District (PGJDF), was found dead earlier this year, with his
body showing signs of blunt trauma.2
1
Global Rights
International Gay and Lesbian Human Rights Commission (IGLHRC) International Human Rights
Clinic, Human Rights Program, Harvard Law School, and Colectivo Binni Laanu A.C., The Violations of the Rights of
Lesbian, Gay, Bisexual and Transgender Persons in MEXICO: A Shadow Report (Shadow Report) (2010) Available
here: http://www.globalrights.org/site/DocServer/LGBT_ICCPR_Shadow_Report_Mexico.pdf
2
Leonardo Bastida Aguilar, “Asesinan en Hidalgo a funcionaria capitalina transsexual” NotieSe, June 7, 2013.
Available here: http://www.notiese.org/notiese.php?ctn_id=6664
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Early attempts have been made to discredit the political importance of this killing by claiming it as a
domestic assault.3 However, reports have shown a trend where potential LGBT hate crimes are labelled
as crimes of passion by police and their homophobic motivation is left uninvestigated.4 In addition, as
the Immigration and Refugee Board (IRB) itself notes, “human rights defenders that work on sexualdiversity issues are often the object of threats, aggressions, murder, politically motivated criminal
charges and imprisonment for organizing protests or events promoting respect for human rights.”5 One
documented example of police refusing to investigate hate-motivated LGBT violence was the murder of
LGBT activist Octavio Acuna Rubio in 2005.6 Representatives from Mexico’s National Council for the
Prevention of Discrimination (CONPARED) have labeled the homicide a homophobic hate crime, but the
police investigation failed to investigate this motive, and treated the crime as a common assault.
Killings of activists within Mexico have been common in recent years. Gender rights activist Agnes Torres
Hernandez was an outspoken transgender advocate, who was found killed in March 2012.7 In 2011, two
LGBT activists, Quetzacoatl Leija Herrera and Javier Sánchez Juárez, were killed just two months apart.8
Rates of Violence, Homophobia and Transphobia in the General Public
The exact rates of homophobic and transphobic violence and discrimination are difficult to determine,
as there is currently no hate crime legislation for LGBT violence. However, the surveys that have been
collected reveal disturbing trends. According to one study, 76.4% of LGBT people have experienced
physical violence because of their sexual orientation or gender identity and 53.3% have been assaulted
in public spaces.9 Non-violent forms of discrimination, such as employment discrimination, and
discrimination while accessing public services are also prevalent. According to Mexico’s national
association for HIV/AIDS (CENSIDA), many victims of homophobic violence in Mexico would be unlikely
3
La Pagina, “Homosexual confiesa participación en asesinato de su pareja” June 9, 2013. Available here:
http://www.lapagina.com.sv/internacionales/82765/2013/06/09/Homosexual-confiesa-participacion-enasesinato-de-su-pareja
4
Shadow Report, Supra Note 1
5
Immigration and Refugee Board of Canada, MEX103804.E: Treatment of Sexual Minorities (2011). Available here:
http://www.irb-cisr.gc.ca:8080/RIR_RDI/RIR_RDI.aspx?id=453578&l=e (Par. 11)
6
Immigration and Refugee Board of Canada, Issue Paper - Mexico: Situation of witnesses to crime and corruption,
women victims of violence and victims of discrimination based on sexual orientation (Issue Paper) (2007). Available
here: http://www.irb-cisr.gc.ca:8080/Publications/pubip_di.aspx?id=327
7
US Department of State, Bureau of Democracy, Human Rights, and Labour, Country Reports on Human Rights
Practices for 2012: Mexico (2012). Available here:
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204464
8
Latin America News Dispatch “Mexico’s LGBT Community Faces Violence Despite Major Gains in Civil Rights”
August 2, 2011. Available here: http://latindispatch.com/2011/08/04/mexicos-lgbt-community-faces-violencedespite-major-gains-in-civil-rights/
9
Shadow Report, Supra Note 1.
Egale Canada is Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.
Égale Canada est l’organisme national du Canada de défense des droits des personnes LGBT, voué à
la promotion de l’égalité, de la diversité, de l’éducation et de la justice.
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to report it.10 According to CONAPRED (Mexico’s National Council for the Prevention of Discrimination),
LGBT people lack confidence in law enforcement agencies because of perceived homophobia.11
Although police rarely label homophobia or transphobia as a motive in homicides, statistics have been
compiled which show that there was an average of 60 killings motivated by sexual orientation per year
between 2001 and 2009.12
Police Impunity and Acts of Violence
Despite legislation aiming to protect people, including LGBT people, from violence, LGBT people have
little recourse against violence because of the prevalence of homophobia and transphobia in police and
security forces. According to a study by the Metropolitan Autonomous University, Mexico’s security
forces have harassed 20% of LGB people and 30% have faced discrimination by police.13 Another study
also found that 30% had been discriminated against, but also found that 20% of LGB people had been
assaulted by police.14 Reports by Amnesty International document an incident in Yucatán state, where
an LGBT activist was handcuffed and blindfolded by police, who "repeatedly beat him in the face, chest,
and back," and "questioned him using homophobic language."15 The victim was also threatened and told
to keep silent about the incident. Many municipal governments still have laws against “immoral acts”
and “public indecency” which law enforcement use to harass same sex couples.16 Even if incidents are
reported to police, sources indicate that impunity of crimes against sexual minorities is prevalent.17
Federal District: Recognition and Denial
The Federal District (Mexico City) has significantly more progressive legislation than many other areas of
the country. To date, it has already passed equal marriage and adoption legislation, which has withstood
constitutional challenge.18 This is sometimes used as evidence that Mexican LGBT people need not seek
asylum in another country, because they can seek safe refuge in the Federal District. However, this is not
the experience of many LGBT people in Mexico City. Many who identify as LGBT and live within the
10
Issue Paper, Supra Note 6.
Ibid.
12
Immigration and Refugee Board of Canada, MEX103798.E (2011). Available here: http://www.irbcisr.gc.ca:8080/RIR_RDI/RIR_RDI.aspx?id=453573&l=e
13
MEX103804.E, Supra Note 5
14
Shadow Report, Supra Note 1.
15
Amnesty International, "LGBT Activist Tortured by Police. (AMR 41/088/10),” 8 December 2010. Available here:
http://www.amnesty.org/en/library/asset/AMR41/088/2010/en/75f70acb-0f50-4b4f-b1a89a12424479b9/amr410882010en.pdf
16
Issue Paper, Supra Note 6.
17
MEX103804.E, Supra Note 5
18
MEX103798.E, Supra Note 12
11
Egale Canada is Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.
Égale Canada est l’organisme national du Canada de défense des droits des personnes LGBT, voué à
la promotion de l’égalité, de la diversité, de l’éducation et de la justice.
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Federal District report homophobia, transphobia, and violence, sometimes at the hands of police.19 11%
of LGBT people living in Mexico City report that they have been victims of threats, extortion, or
detention by police due to their sexual orientation.20 The prevalence of societal and police homophobia
and transphobia mean that LGBT people may face persecution within the Federal District.
Mexico and Bill C-31
With the introduction of Bill C-31, Protecting Canada’s Immigration System Act, Canada has formed a
“safe countries list.”21 Applicants from these countries receive expeditious hearings, and do not share
many of the rights that Canada has traditionally guaranteed asylum seekers. One problem with this
approach is that, although the decision to label a country as a “designated country of origin” is
ultimately left to the Minister of Citizenship and Immigration, counties are designated “safe” based on
aggregated data of failed refugee applications.
The challenge with the “safe countries list” is that it does not appropriately recognize that many
refugees, and potential claimants, are persecuted because of membership in a particular social group. A
persecuted group from a country where most citizens are safe may not receive protection if the general
population of that country has filed a large number of unsuccessful claims. Mexico was designated a
“safe country of origin” on February 15, 2013 due to the conditions faced by most citizens, and the
number of rejected refugee claims. Canada’s use of aggregated data on Mexico has caused an erasure of
the heightened risk of persecution and violence faced by LGBT asylum seekers.
LGBT refugees from Mexico will face an expeditious process, with 45 days processing time (rather than
the prior 171) for those who make a refugee claim at a port of entry, and 30 days for those who make a
claim at an inland office for Citizenship and Immigration. This is especially problematic for LGBT
claimants. As noted by researchers at Simon Fraser University, because of the documentary evidence
requirements for claims based on sexual orientation and gender identity, LGBT claimants often require a
greater time to compile documents.22 Even LGBT asylum seekers with a very valid claim of persecution
may not be able to compile documentary evidence of their sexual orientation or gender identity, or the
persecution they face, in time for these procedures. After having their application expeditiously
declined, LGBT refugees from countries labelled “safe” will no longer have a right to appeal their
19
For example, See Daniel Hernandez, “Gay rights activists in Mexico City accuse police of abuses” Los Angeles
Times, May 17, 2013. Available here: http://www.latimes.com/news/world/worldnow/la-fg-wn-mexico-lgbt20130517,0,5394726.story
20
MEX103804.E, Supra Note 5
21
Canada. Parliament. House of Commons. “An Act to Amend the Immigration and Refugee Protection Act, the
Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and
st
st
Immigration Act.” Bill C-31, 41 Parliament, 1 Session, June 2, 2011 - Present Available here:
http://www.parl.gc.ca/LEGISINFO/BillDetails.aspx?Language=E&Mode=1&billId=5383493
22
Simon Fraser University, “Gender-persecuted refugees need support, Media Release,”
November 22, 2012. Available here: http://www.sfu.ca/pamr/media-releases/2012/genderpersecuted-refugees-need-support.html
Egale Canada is Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.
Égale Canada est l’organisme national du Canada de défense des droits des personnes LGBT, voué à
la promotion de l’égalité, de la diversité, de l’éducation et de la justice.
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decision, or a right to make a claim under humanitarian and compassionate grounds. These
requirements violate UN High Commissioner for Refugees’ guidelines on the treatment of SOGI
refugees, which recognize that many LGBT people will not have lived openly as LGBT in their countries of
origin.23 It notes that many claimants facing real persecution will struggle to produce documents and
encourages procedures that are sensitive to their circumstances.
Additionally, LGBT claimants may have difficulty disclosing aspects of their sexual orientation or gender
identity, or may express them in ways inconsistent with Canadian terminology on SOGI. For instance, in
a 2007 Federal Court ruling, the court noted that the claimant was hesitant to acknowledge her gender
identity to immigration officials for fear of persecution.24 Expedited procedures are inappropriate for
providing a fair hearing where a person must disclose information to immigration officials, due to
discrimination and potential violence they have experienced from public officials in their country of
origin. Accommodations are currently available for vulnerable people seeking asylum,25 but the reduced
trial period may also limit a person’s ability to seek and obtain accommodations in time.
LGBT families and recognition for non-accompanying family members
Canada’s refugee and immigration programs allow refugee claimants and immigrants to list family
members who are not able to accompany them at the time they enter Canada, but will be joining them
after the fact.26 However, Canada’s refugee and immigration system creates very specific barriers for
LGBT families as it relies on recognition of family bonds by the country that families are coming from.
Canada allows refugees and immigrants to list their spouses27 as non-accompanying family members,
but does not allow common-law partners to do so. The effect of this is that Canada will not recognize
partnerships where couples have not been able to access same-sex marriage.28 A couple fleeing a
country due to persecution based on sexual orientation usually does not have access to marriage
equality in their country of origin, and is unlikely to have been able to travel to another country to
23
United Nations High Commissioner for Refugees, Guidelines on international protection no. 9: Claims to Refugee
Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951
Convention and/or its 1967 Protocol relating to the Status of Refugees (2012). Available here:
http://www.unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=509136ca9&query=sexual%20orientation%20http://www.un
hcr.org/cgi-bin/texis/vtx/home/opendocPDF.pdf?docid=4daed0389%23xml=http://www.unhcr.org/cgibin/texis/vtx/search/pdfhi.txt?ID=4daed0389&query=sexual%2520orientation
24
Hernandez v. Canada, [2007] F.C.J. No. 1665
25
Immigration and Refugee Board of Canada, Guideline 8: Guideline on procedures with respect to vulnerable
persons appearing before the IRB (2006). Available here: http://www.irbcisr.gc.ca/eng/brdcom/references/pol/guidir/Pages/GuideDir8.aspx
26
“Guide to the Private Sponsorship of Refugees Program,” Citizenship and Immigration Canada, accessed June
17,2013, http://www.cic.gc.ca/english/resources/publications/ref-sponsor/section-2-10.asp
27
“Help Centre Glossary: Spouse,” Citizenship and Immigration Canada, accessed June 17, 2013,
http://www.cic.gc.ca/english/helpcentre/glossary.asp#spouse
28
“Help Centre Glossary: Married,” Citizenship and Immigration Canada, accessed June 17, 2013,
http://www.cic.gc.ca/english/helpcentre/glossary.asp#married
Egale Canada is Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.
Égale Canada est l’organisme national du Canada de défense des droits des personnes LGBT, voué à
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obtain a marriage license. The result is that same-sex partners who must travel to Canada separately will
most often be unable to take advantage of the one-year window that Canada offers to opposite-sex
spouses.
Canada’s refugee and immigration programs also allow claimants to list dependent children who will not
be able to travel with them. This can occur when families are separated due to the persecution that led
to their refugee claim. However, Canada’s system creates specific barriers for LGBT families who are
forced to travel separately. Most governments worldwide do not allow individuals to adopt their samesex partner’s biological child, or allow same sex partners to jointly adopt. As a result, Canada will not
recognize that many parents in same-sex relationships are parents to their children,29 and as a result,
they will not be able to access the resources available to parents who are in opposite-sex relationships.
This issue is particularly concerning when considering the persecution of LGBT families in Mexico. In
some Mexican states, same-sex couples are prohibited from adopting by law. However, even in areas
that do allow for adoption by same-sex couples, LGBT individuals risk facing discrimination by adoption
and child protection agencies, which may see them as unfit parents due to their sexual orientation or
gender identity. LGBT people risk discrimination both during the adoption process, and to potentially
losing custody of their children after the fact. In one instance, an 8-year-old child was taken from the
transgender woman, Alondra Avila Velez, who had raised the child since birth.30 The state office of the
agency on family issues removed the child, whom was then sent to the State Family Council. When a
court ordered that the child be returned to her adoptive mother’s custody in 2008, the State Family
Council moved the child to an unknown location, citing the transgender woman’s “moral character.”
This violates the rights of both LGBT parents and their children, under Articles 17 and 24 of the ICCPR.31
Conclusion:
LGBT people face a high risk of persecution, violence, and even death within Mexico. Canada’s
designated country of origin list has the effect of requiring refugee boards to use expedited procedures
on this vulnerable group. LGBT claimants are forced to prove intimate aspects of their personal lives,
which have been denied by their government and community, and face the threat of having no right to
appeal decisions. Additionally, Canada’s IRB is not currently prepared to recognize family bonds which
are denied through state persecution.
29
“Help Centre Glossary: Dependant Child,” Citizenship and Immigration Canada, accessed June 17, 2013,
http://www.cic.gc.ca/english/helpcentre/glossary.asp#dependent_child
30
Shadow Report, Supra Note 1
31
Ibid.
Egale Canada is Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.
Égale Canada est l’organisme national du Canada de défense des droits des personnes LGBT, voué à
la promotion de l’égalité, de la diversité, de l’éducation et de la justice.
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