“Trans people are terrified”: This LGBTQ immigration lawyer has been inundated with inquiries from the US since Donald Trump’s election

On the first day of his second term, US president Donald Trump signed an executive order denying the existence of trans people. He incorrectly equated biological sex with gender, decried “gender ideology” and instructed federal agencies to refuse to alter genders on government documents, along with a slew of other changes. A week later, he issued another executive order seeking to ban gender-affirming health care for people under the age of 19. With those strokes of the president’s pen, the tide of transphobic rhetoric and hateful misinformation sweeping the country became policy.

Almost immediately, immigration lawyers on this side of the border began receiving calls and emails from trans people and their families looking to move north, fearing that their rights to both health care and basic physical safety were in jeopardy. We spoke with Adrienne Smith, a Toronto lawyer specializing in LGBTQ immigration, about what she’s been hearing from down south and whether Canada could accept refugees from the United States.

Prior to Trump’s second term, where did most of your clients come from? All over the world. Most of the refugees I assisted would come from places like Jamaica, Nigeria and the Middle East—anywhere it’s not safe to be LGBTQ.

Does the US qualify as such a country? Not usually. In 2019, I did make a successful application for a trans woman to stay in Canada based on humanitarian grounds. She was originally from Puerto Rico but had been living for several years in the mainland United States and was struggling to find housing, health care and other services, all while facing violence. When she visited Canada, she found a loving community of other trans people in Toronto who offered her housing and financial support, essentially adopting her. Several of these people wrote letters in support of her claim, which we submitted. The refugee board doesn’t give the reasoning for its decisions, but we know they make them based on the information provided. My guess is they granted her application based on the hardships she was experiencing in the US, plus her proven ties to Canada. But that’s the exception to the rule. Related: My gender-affirming care clinic saves lives. The Ford government’s funding cuts to virtual health care will shut us down

How much interest do you generally get from Americans wanting to move? There’s always interest. Plenty of migration happens back and forth between Canada and the US. We saw an uptick back in 2017, when Trump was first elected, but that was mainly people taking issue with the values he represented. Now, people seem genuinely scared. Our calls really started to rise this past fall, leading up to the election last November. Then, with the executive orders in January, we’ve been getting anywhere from five to 10 inquiries per day, mostly from trans people.

What have you been hearing from them? They’re terrified. One told me in an email, “I’m a trans person who is increasingly afraid for my well being, and I’m starting to try and find my way to a safer place.” Another, a gay man whose husband is trans, wrote, “We’ve been living with so much stress and grief. Now it feels like things are coming to a dangerous head.” Then there are the voicemails. You can hear the fear in people’s voices. They sound desperate and traumatized.

Is there a pathway for these people to come to Canada as refugees? Not based on their gender identity. Part of the legal definition of a refugee is that they can’t have an “internal flight” option—meaning that there can’t be a safe space to go within their own country. For the US, that means we’d have to show that places like New York or California aren’t safe for the trans community, which would be a real obstacle. In their application, a refugee has to prove that no matter where they go, law enforcement can’t be relied upon to do their due diligence when they report discrimination or violence.

There are seven states that have laws specifically outlawing discrimination based on gender identity, and it’s assumed that those states—including their police—have the capacity to uphold those laws. There’s been debate around that, though: in 2022, a trans person from the US was accepted to Canada as a refugee on the basis that the police in her home state of Colorado, which has one such law, couldn’t be trusted to actually uphold it. That decision was appealed several times, and ultimately a federal court overturned it on the grounds that moving to New York was, in their opinion, a viable option for the claimant. That case showed that making similar claims could work, but it would be an uphill battle.

Related: When Donald Trump was elected president, these people moved to Toronto

Is the current political climate in the US really not enough to justify a claim? I’m watching to see how the executive orders play out in the lives of trans people. We need documented cases of individuals being denied ID or health-care services. I know people are worried about that—we’ve heard from one person who’s a Canadian citizen living in Toronto, and they’re scared for their nine-year-old niece, who is trans and living in Utah. Gender-affirming care, like therapy and puberty blockers, would be essential to her well being. The family wants to help her, and they’re considering all of their options—one of which might be to have her relative here adopt her. But, in order to make a refugee claim work, we’d need to see evidence that this kind of vital health care is really being denied.

Would it not be enough to argue that these rights could be denied in the near future? That is a possibility. I just did a claim for a non-binary person from Vietnam who was living in Canada. They never faced any specific infringement of their rights, but we argued that they would be persecuted if they went back to Vietnam. That claim was accepted. With the US, we have very clear executive orders specifically targeting this community. It’s a clear infringement of their rights. That’s not the barrier—it’s the “internal flight” issue that makes things difficult.

Could that ever change? The “internal flight” part of the definition isn’t going anywhere. The question is whether evidence will show that trans and LGBTQ people are not in fact safe in these places we assumed were safe. Most of the Americans I’m speaking with are from the Midwest and the South. They haven’t discussed moving anywhere else in the US because it’s the president and the federal government they’re afraid of. They now fear the entire country.

Realistically, what are these people’s chances of making it to Canada? Aside from applying as a refugee, there’s still the standard immigration route. That uses a points system, where you need various attributes like skills and education to qualify. If someone is working in health care, for instance, which has been designated as a priority, they’d have an easier time. But it’s still quite hard, especially after the government raised the bar a couple of years ago. Trans people experience higher rates of discrimination, which means it can be harder for them to gain qualifications or high-paying jobs—exactly the kinds of things that would help them immigrate. So it would be very difficult for them to qualify.

Where would they be moving to if they did? Major urban centres, for the most part, like Toronto and Vancouver. One mentioned not wanting to relocate to Alberta because of the anti-trans rhetoric and policies coming out of there lately.

We’ve already seen anti-trans legislation proposed or passed in Alberta, Saskatchewan and New Brunswick. Pierre Poilievre recently said he was “not aware of any other genders than man and woman.” Is what’s happening in the States repeating itself here? Any anti-trans rhetoric being used in the US is going to bleed over to Canada. Yet, from my vantage point here in Toronto, I’m not seeing it happen to the same degree. Maybe I’m naïve, but when I look at the protections we have for trans people in Canada at the federal level, I find they’re quite strong. Perhaps if public opinion shifts enough, they could be at risk. But, for now, they’re strong.

Are you currently pursuing any immigration or refugee claims from American clients? Yes, but for different reasons. There was a recent change in the law that allowed children born outside Canada to gain citizenship through a legal parent even if that parent isn’t biologically related to them—as is the case for some LGBTQ parents. A lot of people in the US who may not have been eligible for Canadian citizenship are now exercising that right. I also have one gay man who works as a psychiatrist applying based on the points system. As a health-care worker, he has a chance if he can get a residency at a Toronto hospital. But, for most of these people, there’s nothing I can do.

How does that make you feel? Powerless. I was just talking to a colleague about this. I’m getting calls all day, and in each one I can hear the fear. I’m getting emails day in and day out, and they’re all so similar. People are terrified. And yet there’s so little I can do. It’s harder than ever for people to qualify for immigration or refugee status these days. It’s a scary and traumatic time for my community, yet there’s nothing I can do.

What should Canadians be doing as this all plays out? I’ve been working in LGBTQ immigration for over 10 years. I’ve seen my clients contribute incredible things to this country, whether they came here as refugees or as immigrants. Some have walked into my office five years later, having started a business and provided employment to fellow Canadians. They’ve contributed and thrived, regardless of their level of English or education—the things the points system measures. In a time of crisis, Canadians should remind ourselves how we treat people whose rights have been infringed. We have a moral obligation to look at what’s going on in at the US and recognize that helping these people is in line with our values.

This interview has been edited for length and clarity.
Are you an American who’s thinking about moving to Canada? If you’re planning a Trump-motivated cross-border move, we want to hear from you. Email us at submissions@torontolife.com.