A number of advocacy organizations are calling on the Canadian federal government to either withdraw from the Safe Third Country Agreement (STCA) or to make an exception for transgender, intersex, and non-binary migrants, citing concerns for their safety in the US.
The Canada-US STCA, which first came into force in December 2004, requires that refugee claimants seek asylum in the first of the two countries they arrive in. This prevents asylum seekers from making asylum claims in both Canada and the US, a measure intended to manage the flow of immigration along the countries’ shared border.
But some advocates are concerned that President Donald Trump’s executive orders put migrants’ safety at risk, especially migrants who are transgender, intersex, and non-binary, as they could be forced to be detained according to their biological sex in immigration detention facilities, as well as face barriers in obtaining the correct legal documentation.
On January 20, Donald Trump signed an executive order entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which changes United States federal policy to only recognize two genders — male and female — based on biological sex.
He also signed the executive order Protecting the American People Against Invasion, which is a broad directive that impacts a number of immigration initiatives, including expanding the categories of people eligible for expedited removal from the United States, a method of quick deportation.
Both Amnesty International Canada and the Canadian Council for Refugees (CCR) are calling for an urgent withdrawal from the agreement, though both organizations opposed the agreement prior to the executive orders and have taken previous legal action against it.
How Trump’s executive orders could threaten migrants’ safety
Rainbow Railroad, a non profit organization that works to help 2SLGBTQIA+ people escape state-sponsored violence, is publicly advocating for an exception to the STCA for transgender, non-binary, and intersex refugee claimants, to allow them to seek asylum in Canada, instead of a full withdrawal from the agreement.
Nishin Nathwani, head of strategy at Rainbow Railroad, said he’s concerned that these executive orders will have serious implications for migrants, especially 2SLGBTQIA+ migrants who are placed in detention facilities.
“Transgender migrant and refugee women are especially at risk of abuse because they’re often detained in cisgender male spaces,” he said in an interview with rabble.ca. “Beyond the increased likelihood of sexual assault, they’re at risk of a number of other severe human rights violations, including harassment by by other detainees and guards as well.”
Nathwani pointed to the fact that 2SLGBTQIA+ migrants are much more likely to experience sexual assault in immigration detention centres. According to a 2020 report by the nonpartisan policy institute Center for American Progress (CAP), LGBT immigrants in Immigration and Customs Enforcement custody were 97 times more likely to be victims of sexual assault.
Nathwani said he’s worried that this may result in queer claimants being placed in solitary confinement.
“This has been well documented by UN Women,” Nathwani said. “Given the elevated risk of violence in terms of these facilities, some trans people might be forced into solitary confinement, which can be testified by authorities as a protective measure.”
A UN Women policy brief from 2023 reported that gender-diverse migrants were more likely to be kept in physical isolation and prolonged solitary confinement in detention facilities, based on data from American Civil Liberties Union of Arizona, CAP, and the International Detention Coalition.
“We know that solitary confinement is detrimental to individual physical mental health and can lead to significant trauma and adverse health outcomes,” Nathwani continued. “That’s a big concern.”
Nathwani also pointed to issues of accessing the correct legal documentation, which has been complicated by Trump’s executive order which forces federal policy to only recognize two genders.
“When an official documentation does not match a person’s gender identity or exposure, it can lead to discrimination and ill treatment by border authorities,” Nathwani said. “We’ve also seen cases where individuals are denied the right to pass through a border checkpoint because of that discrepancy.”
What withdrawing from the STCA could mean for Canada
Max Berger, an immigration lawyer and member of the Canadian Immigration Lawyers Association, said advocates are correct in calling for Canada to withdraw from the STCA — but there are implications Canada must be prepared for if it decides to do so.
Berger also explained that even if Canada does not withdraw, it will still feel the impacts of the US’ stance on immigration.
“There’s no more Roxham Road, so refugee claimants who want to get into the country basically have to sneak into the country,” he said in an interview with rabble.ca, referencing the road in New York that many asylum seekers used to cross into Canada and claim asylum, as it was not an official port of entry to Canada, and therefore not covered under the STCA.
In March 2023, Prime Minister Justin Trudeau and President Joe Biden modified the STCA to allow Canada to send migrants back to the United States if they were caught within 14 days of crossing into Canada, which effectively closed Roxham Road.
READ MORE: The U.S. is a not-so safe third country for refugees
“We’re going to see a cat and mouse game of epic proportions between desperate refugee claimants trying to sneak into Canada,” Berger continued. “That’s the result of continuing on with the Safe Third Country Agreement.”
But Berger explained that if Canada withdraws from the agreement, it will receive a large surge of refugee claimants, and it needs to ensure it’s equipped to handle it.
As of December 2024, the Immigration and Refugee Board of Canada (IRB) had over 270,000 pending refugee protection claims. Some claims take years to be processed.
“If we do withdraw from the Safe Third Country Agreement, that has to go hand in hand with increasing our capacity to manage a much larger flow of claimants,” Berger said. “It means more staffing at the IRB and more refugee judges. It means streamlining the system. It means quite a considerable amount of resources put into the refugee determination system.”
“Without that, we are just going to be overwhelmed,” he said.
Legal challenges against the STCA
In 2017, the CCR, Amnesty International Canada and the Canadian Council of Churches mounted a legal challenge against the STCA on the grounds that returning those seeking to make asylum claims to the US violates sections 7 and 15 of the Charter of Rights and Freedoms — the rights to life, liberty and security of the person and equality under the law, respectively.
But in their 2023 ruling, the Supreme Court upheld the STCA, though they did not determine if the agreement breached equality rights, sending the question back to the Federal Court to answer.
A hearing date has not yet been set.
When asked if Rainbow Railroad was planning to take legal action, Nathwani said the organization is following the ongoing challenge to determine if it makes sense for them to participate in any capacity.
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