Making an Asylum Claim in Canada Based on Sexual Orientation or Gender Identity
Zia Waseer
Waseer Law Office
Updated October 10, 2026. General information, not legal advice.
Canada’s refugee system can protect people who fear persecution because of their sexual orientation, gender identity or expression, or sex characteristics (often shortened to SOGIESC). Each claim is decided on its own facts. This page explains the basic rules. It cannot tell you whether you qualify, and no lawyer can promise the outcome of a claim.
Who can be protected
- Convention refugee. Under section 96 of the Immigration and Refugee Protection Act, a person may be found to be a refugee if they have a well-founded fear of persecution for one of five reasons, including membership in a particular social group. Sexual orientation and gender identity can fall within that ground.
- Person in need of protection. Under section 97, a person may be protected if returning them would expose them to a risk to their life, a risk of cruel and unusual treatment or punishment, or a danger of torture.
- Who decides. If the claim is found eligible, it is referred to the Refugee Protection Division of the Immigration and Refugee Board (IRB), which holds a hearing and decides it.
- Guideline 9. The IRB’s Chairperson’s Guideline 9 guides decision-makers in cases involving sexual orientation, gender identity and expression, and sex characteristics, including how they assess testimony and evidence.
Coming from the United States: the Safe Third Country Agreement
Under the Safe Third Country Agreement, people are generally expected to claim refugee protection in the first safe country they arrive in. Canada and the United States treat each other as safe countries for this purpose.
Since March 25, 2023, the Agreement applies to people who:
- make a claim at a Canada-U.S. land border crossing;
- cross the land border between official crossings and make a claim within 14 days of entering Canada;
- arrive by train; or
- arrive at an airport in limited situations, such as when they were refused refugee status in the U.S. and are being deported through Canada.
A person covered by the Agreement is generally not eligible to make a claim in Canada and may be returned to the U.S., unless an exception applies. IRCC lists four types of exception:
- Family member: you have a qualifying family member in Canada, such as a Canadian citizen, permanent resident, protected person or certain permit holders.
- Unaccompanied minor: you are under 18 and alone, with no parent or legal guardian in Canada or the U.S.
- Document holder: you hold a valid Canadian visa (other than a transit visa), work or study permit, or another qualifying Canadian document.
- Public interest: you have been charged with or convicted of an offence that could carry the death penalty in the U.S. or another country.
Important
Sexual orientation or gender identity is not, by itself, an exception to the Safe Third Country Agreement. Even when an exception applies, you must still meet every other eligibility requirement. Get legal advice before you travel to the border.
Source: IRCC, Canada-U.S. Safe Third Country Agreement. Exceptions and eligibility rules can change, so check the current page.
Evidence and preparation
- Your own account matters most. Your Basis of Claim form sets out what happened to you and what you fear. It should be detailed, accurate and consistent with what you say later.
- Supporting evidence, where you can reasonably get it. This may include messages or documents showing threats, police or medical records, statements from people who know you, and information about conditions in your country.
- Not every type of evidence is available. Guideline 9 recognizes that people may not be able to provide certain evidence, and directs decision-makers not to rely on stereotypes.
- Deadlines are strict. Time limits apply to the Basis of Claim form and other steps. Missing one can seriously harm a claim, so get advice as early as you can.
How we can help
- Review whether your claim may be eligible to be referred to the IRB, including whether a Safe Third Country Agreement exception may apply.
- Help prepare your Basis of Claim form and supporting evidence.
- Represent you before the Refugee Protection Division.
The IRB decides every claim on its own facts. We cannot predict or promise any result.
Confidentiality and interpreters
What you tell us is protected by our professional duty of confidentiality. If you need an interpreter, tell us when you book. We will discuss how interpretation will be arranged so you can speak freely.
