The Immutable Refugees: Sexual Orientation in Canada (A.G.) v. Ward

Abstract

International refugee law has been structured so that claimants must fit themselves into narrowly defined categories: the Canadian Immigration Act requires that refugee claimants establish a well-founded fear of persecution based on one of the enumerated grounds, namely race, religion, nationality, membership in a particular social group, or political opinion. As sexual orientation is not enumerated, many lesbian and gay asylum seekers have attempted to establish their claim on the basis of "membership in a particular social group." The 1993 Supreme Court decision in Canada (A.G.) v. Ward has clarified that sexual orientation is a ground upon which a refugee claimant may claim membership in a particular social group because it is an innate or unchangeable characteristic. The decision in Ward, while a positive development, inappropriately classifies sexual orientation as an immutable personal characteristic. It suggests that lesbians and gay men are deserving of international protection only because they cannot change the personal attribute for which they are persecuted. Instead, refugee status should be granted because lesbians and gay men have a common social identity which is ascribed an inferior social and political status by their persecutors.