Chairperson's Guideline 9 Has Had a Major Impact on LGBT+ Refugees in Canada
Updated: Mar 5, 2022
Policy Brief by Spyra Papoulias.
On May 1 2017, Chairperson’s Guideline 9 was implemented by the Immigration and Refugee Board of Canada (1). Chairperson’s Guideline 9 was seen as a modernization of how decision-makers deal with refugee cases involving individuals who face persecution because of their gender identity or sexual orientation (2). Chairperson’s Guidelines are guiding principles designed to provide decision-makers with instruction relating to the immigration and refugee process (3). They give decision-makers clarity on how to properly deal with disputes and also provide a procedural roadmap (4). While they are non-binding, decision makers are expected to apply them, unless decision makers are able to provide justified reasoning as to why they should not (5).
Prior to Chairperson’s Guideline 9, the guideline for decision makers relating to cases involving LGBT+ refugees were covered under Chairperson’s Guideline 8, which deals with a variety of vulnerable groups (6). Guidance on how to deal with LGBT refugees within Chairperson’s Guideline 8 consists of one paragraph outlining how LGBT identity makes an individual vulnerable (7). It states that the Immigration and Refugee Board (IRB) must be sensitive to the particular challenges of the LGBT community (8). It does not outline, however, how to properly deal with cases involving LGBT refugees, treat LGBT refugees, or contain a list of proper terminology (9). Under this policy, LGBT refugees could be subjected to inappropriate and invasive questions regarding their identities, during refugee hearings (10). This resulted in a need for a more detailed and comprehensive Chairperson’s Guideline.
Chairperson’s Guideline 9 is a 15-page guideline, covering the subject of LGBT refugees (11). Chairperson’s Guideline 9 outlines terminology relating to refugees with a diverse sexual orientation, gender identity or expression, which is abbreviated as SOGIE (12). The Guideline provides IRB decision-makers with a list of ways that discrimination can manifest in the lives of SOGIE people, such as employment discrimination, violence, and fear of disclosure (13). It covers the need to protect sensitive information relating to the findings in the IRB and potential dangers that could come from mismanagement of information disclosed, how to establish credibility of SOGIE refugee claimants and how to approach the proceedings process with consideration to diversity of identities within SOGIE umbrella (14). The usage of a Gender-based Analysis Plus framework ensures that factors such as race, class, ethnicity, religion and health status are considered as well (15). Chairperson’s Guideline 9 provides a guide for dealing with SOGIE refugee claimants within the refugee process and its unique challenges.
On November 26th of 2020, the Immigration and Refugee Board published a review on the implementation of Chairperson’s Guideline 9 (16). The review process involved consultation with stakeholders in the policy, media and academic realms, tracking of coverage relating to Chairperson’s Guideline 9, survey results, and analysis of refugee cases involving SOGIE claimants (17). The review notes that there has been noticeable improvement in the IRB’s treatment of cases involving SOGIE individuals, with all cases involving SOGIE individuals having applied Chairperson’s Guideline 9 (18). The review recommends 11 changes in order to improve on the 2017 guideline. The recommendations deal with increasing clarity on definitions, strengthening collaboration with other departments and organizations for increased efficiency, and ensuring that there is transparency with the SOGIE individuals involved in the case (19). There was increased usage of proper terminology and increased sensitivity relating to the disclosure of information within rulings (20). Therefore, while Chairperson’s Guidelines are non-binding, the implementation of this Guideline has led to a notable improvement in the way the IRB deals with cases involving SOGIE individuals.
Immigration and Refugee Board of Canada, “Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression,” Immigration and Refugee Board of Canada, July 6, 2018, https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx.
Nicholas Keung, “Refugee Board Creates Guidelines for Deciding LGBTQ Claims,” Toronto Star, May 5, 2017, https://www.thestar.com/news/immigration/2017/05/05/refugee-board-creates-guidelines-for-deciding-lgbtq-claims.html.
Immigration and Refugee Board of Canada, “Chairperson's Guidelines,” Immigration and Refugee Board of Canada, April 1, 2019, https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/chairperson-guideline.aspx.
Ibid.
Ibid.
Immigration and Refugee Board of Canada, “Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB,” Immigration and Refugee Board of Canada, December 15, 2012, https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir08.aspx#a16.
Ibid.
Ibid.
Ibid.
Jill Coubrough, “'Revolutionary' Changes to LGBT Refugee Claims Ensures 'Sexuality Is Not Put on Trial',” CBC News (CBC/Radio Canada, May 3, 2017), https://www.cbc.ca/news/canada/manitoba/new-immigration-refugee-board-guidelines-for-lgbtq-asylum-claims-1.4096500.
Immigration and Refugee Board of Canada, “Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression,” Immigration and Refugee Board of Canada, July 6, 2018, https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx.
Ibid.
Ibid.
Ibid.
Ibid.
Immigration and Refugee Board of Canada, “Review of the Implementation of the Sexual Orientation and Gender Identity and Expression (SOGIE) Guideline,” Immigration and Refugee Board of Canada, November 26, 2020, https://irb.gc.ca/en/transparency/reviews-audit-evaluations/Pages/sogie-guideline-implementation-review.aspx#toc7.
Ibid.
Ibid.
Ibid.
Ibid.