Canadian Immigration for Americans: An LGBTQ+ Immigration Lawyer’s Perspective

Introduction

Shifts in the U.S. political landscape that negatively affect the 2SLGBTQIA+ community often renew conversations among Americans about the possibility of seeking greater safety and inclusion in Canada.

The year 2025 has marked a turning point, with discussions around relocating to Canada gaining unprecedented urgency. Our firm, which specializes in 2SLGBTQIA+ immigration, has experienced an extraordinary increase in inquiries from trans and non-binary individuals, and this is a trend that shows no indication of slowing.

Prior to President Trump taking office in January 2025, our practice primarily assisted 2SLGBTQIA+ individuals from countries where same-sex relationships are criminalized such as Nigeria, Jamaica, and Pakistan, or where rights for 2SLGBTQIA+ people remain heavily restricted, including India, the Philippines, and China. Many of our clients have sought refugee protection in Canada on the basis of sexual orientation, gender identity, or gender expression due to a well-founded fear of persecution in their home countries.

Since President Trump’s election, however, we have begun receiving an increasing number of inquiries from trans and non-binary Americans seeking information about potential protection in Canada. As outlined below, there are significant legal and procedural barriers that Americans face when making a refugee claim in Canada.

Why are trans Americans exploring immigration to Canada?

Currently, more than 1,000 anti-trans bills have been introduced across the United States, targeting areas such as sports participation, education, healthcare access, identity documentation, and other aspects of both public and private life for trans and non-binary individuals.[1]

On President Trump’s first day in office, he issued an executive order recognizing individuals as only men or women and directed the Departments of State and Homeland Security “to require that government-issued identification documents, including passports, visas, and Global Entry cards” to list an individual’s sex “at conception.”[2]

As noted by the American Civil Liberties Union (ACLU), one of President Trump’s first executive orders restricted access to gender-affirming care for trans community members under 19, which led to several hospitals across the United States to restrict medical treatment for trans youth.[3]

What pathways are currently available to American citizens?

There is currently no special immigration pathway available to American citizens, which means that American citizens who are interested in immigration to Canada must apply under one of the existing immigration pathways administered by the Department of Immigration, Refugees, and Citizenship Canada.[4] This includes work-based programs, such as Express Entry for skilled workers; the Start-up Visa for immigrant entrepreneurs; regional programs, such as the Provincial Nominee Program (PNP); family sponsorship; and the refugee program.[5]

There are also several temporary immigration programs, such as work permits, study permits, and visitor visas, that are time limited and subject to specific criteria and restrictions.[6]

While many American citizens have contacted our office to inquire about making a refugee claim, the reality is that claimants must satisfy Canada’s strict refugee protection criteria, including demonstrating that they cannot safely relocate within the United States. Given these stringent requirements, prospective applicants may wish to also consider alternative immigration pathways, such as:

• Skilled worker: depending on an applicant’s education, work experience, age, and level of English/French fluency, an applicant may qualify under the Express Entry points system.[7]
• Study Permit: if an applicant is accepted into a Canadian designated learning institution and has sufficient financial funds to finance their education and living expenses, an applicant may qualify for a Study Permit[8] and Post-Graduate Work Permit.[9]
• Family Sponsorship: if an applicant is an a committed, marriage-like relationship with a Canadian citizen or permanent resident, they may qualify depending on the length of the relationship, cohabitation, and other criteria.[10] Once the application is submitted, or if the applicant’s current work permit is expiring in two weeks, an applicant may qualify for an open work permit while waiting for their permanent residence application to be processed.[11]
• Work Permit: a free trade agreement currently exists between Canada, the United States and Mexico (CUSMA) which allows certain business visitors, professionals, or intra-company transferees to apply for a work permit in Canada.[12]
• Canadian Citizenship: if an applicant has Canadian lineage, they may apply for proof of Canadian citizenship given recent changes to the ‘first-generation limit’ which generally meant that an applicant was not automatically a Canadian citizen if their parent was born outside Canada.[13] In December 2023, the Ontario Superior Court of Justice declared the first-generation limit was unconstitutional and a new Bill (C-3) was introduced in 2025 to amend the Citizenship Act.[14] The IRCC is currently accepting requests for the discretionary grant of citizenship if an applicant is impacted by the first-generation limit.[15]  In some cases, the IRCC may be able to process the applications urgently to avoid “situations of potential harm or hardship” due to sexual orientation and gender identity/expression.[16]

What barriers do American citizens face in exploring these pathways?

In order to be accepted as a Protected Person in Canada, a refugee claimant must meet the definition of a Convention Refugee under section 96[17] or a Person in Need of Protection under section 97 of the Immigration and Refugee Protection Act.[18]

Under Canadian immigration law, a person must demonstrate a well-founded fear of persecution in their country of citizenship to qualify as a refugee. In assessing whether persecution exists, decision-makers consider the interests of the claimant that may be harmed, and the extent to which the enjoyment, expression, or exercise of those interests is compromised.

For trans Americans, this may include barriers to accessing gender-affirming healthcare, persistent discrimination in employment or housing, or targeted violence and harassment based on gender identity or expression.

One of the biggest hurdles for American refugee claimants is proving that there is nowhere within the United States where they could live safely. Under Canadian law, a person must show that they cannot avoid persecution by moving to another city or state, or that doing so would be unreasonably difficult or unduly harsh.

For trans or non-binary Americans, this means showing that the risks they face, such as violence, discrimination, or denial of healthcare, exist nationwide, or that moving elsewhere in the U.S. would still expose them to serious persecution.

Are there any Canadian legal cases involving trans Americans asking for protection in Canada?

As explained above, making a claim for protection based on gender identity as a United States citizen will continue to be an uphill battle that is highly case-specific and will depend on the individual evidence and facts presented in each case.

In 2022, the Refugee Appeal Division (RAD) allowed an appeal of a trans refugee from the United States and determined that the appellant was a Convention Refugee.[19] The decision was the subject of a judicial review application filed by the Minister, and in February 2024, the Federal Court granted the Minister’s application and quashed the RAD’s decision.[20] Both of these proceedings preceded the election of President Trump in November 2024.

In July 2025, Smith Immigration Law represented a non-binary American applicant in requesting that their removal from Canada be halted due to an error made by an IRCC Officer in failing to consider the deterioration of conditions for trans people since President Trump took office in January 2025. The Applicant, Angel Jenkel, initially applied to the CBSA to ask that their removal be deferred temporarily because they were the only caregiver to their Canadian fiancée who suffers from severe epileptic seizures. The Applicant’s motion for a stay of removal was based on the serious issue with a CBSA officer’s assessment of their risk application which raised concerns that they may face persecution based on their non-binary identity in the United States. Based on this error, and other factors, a Federal Court Judge halted the Applicant’s deportation to the United States and found that the IRCC Officer failed to consider recent evidence of the conditions in the United States that may have supported a reasonable fear of persecution, combined with the harm that the Applicant may lose their right to advance an arguable case before the Court. [21]

In October 2025, the Canadian Bar Association has sent correspondence to the Minister of Immigration, Refugees and Citizenship to recommend that the IRCC and IRB recognize that the conditions in the United States have deteriorated for trans Americans and to appropriately monitor and train decision-makers to handle an expected increase in these types of claims.[22]

What support can Canadians offer to trans American in the current political context?

The Canadian Bar Association and Ontario Bar Association have been working on various advocacy toolkits for practitioners to assist trans Americans with looking at existing pathways and resources that exist for immigration to Canada.

Given that many trans and non-binary Americans are interested in exploring their options to immigrate outside of the United States, either temporarily or permanently, providing resources and referrals to 2SLGBTQIA+ Canadian organizations will be helpful.

By strengthening connections between legal practitioners, advocacy groups, and 2SLGBTQIA+ organizations in Canada, we can ensure that trans and non-binary Americans receive accurate information, compassionate guidance, and meaningful support as they explore their immigration options.

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