3
Policing borders and sexual/gender identities: queer refugees in the years of Canadian1 neoliberalism and homonationalism
Gary Kinsman
Who needs to know who is ‘really gay’?
At a round-table discussion with Toronto-based social agencies addressing LGBT2 refugee concerns in Canada, held on 22 February 2012 and sponsored by the Envisioning Global LGBT Human Rights research project (Envisioning), a member of a group involved in sponsoring queer refugees asked a question of those present. Could anyone – especially individuals from countries that LGBT refugees are arriving from – assist them in determining whether claimants were ‘really gay’, and therefore valid refugees to sponsor (Envisioning, 2012). This person also asked if LGBT groups based in these applicants’ countries of origin could be enlisted to provide this kind of sexual and gender identification. The Envisioning research network challenged this position both at that event and in later meetings.
I was taken aback by the above person’s request. First of all, I recalled my historical work on national security campaigns and the identification of homosexuals. During these years, the Royal Canadian Mounted Police (RCMP) moved people from ‘suspected’ to ‘confirmed’ homosexuals so they could be purged from the public service; and interrogations were conducted in the military with a focus on engagement in same-gender sexual practices to determine if individuals were ‘real’ homosexuals and therefore could be purged from the military (Kinsman and Gentile, 2010). The current refugee sponsorship process occurs in a different social and historical context and rests on struggles for LGBT rights, but it still raises important concerns in terms of who might be the recipients of this knowledge? What power/knowledge relations is this bound up with? What social standpoint was being taken up with this question? How is it that groups rooted in the LGBT community are involved in trying to establish who is really LGBT?
On investigation it became clear that this comment came as a result of the regulations that the sponsoring group has to negotiate vis-à-vis Canadian state refugee policies, where, if it wants to participate, it must take responsibility for sponsored refugees and feels mandated to protect national space. This gets taken up within state text-mediated relations through which the sponsored LGBT refugee is discursively constructed. As Dorothy Smith points out in her critical feminist sociological approach, ruling in this society is often coordinated by people through official texts (Smith, 1990; Smith and Turner, 2014), and this includes the refugee approval and rejection process. Later in the chapter I will sketch these text-mediated relations into the picture.
Moreover, in a neoliberal twist, these sponsored refugees are now accepted in a context where responsibility (including financial) is shifted from state agencies to community organisations, agencies and churches. As Rohan Sajnani (Envisioning, 2014) suggests: ‘The government has used the resettlement framework to off-load its responsibility to asylum seekers onto community organizations. This tactic has effectively reduced grants for asylum and government sponsorship’, allowing the government ‘to off-load their responsibility for refugee protection onto civil society’ (ibid., pp. 24, 27).
A pilot project for sponsoring LGBT refugees was announced in 2011 by immigration minister Jason Kenney and has since been renewed. Groups can sponsor refugees and the federal government will step up with funding for their first three months in Canada. These funds are accessible only through a state-regulated process for refugees who have already been approved by the United Nations High Commissioner for Refugees (UNHCR) and often have to endure long waits and processing times.3 These private sponsors must commit to supporting the refugee for the first year they are in Canada, including food, accommodation, and assistance with orientation and settlement. The sponsoring group also takes on part of the regulatory work of establishing who is really gay and really a refugee. Only relatively small numbers of LGBT refugees have entered Canada this way, since few are in a financial position to engage in this sponsorship. However, this allowed the federal government to claim that it was making LGBT refugees a priority while the number of refugees generally being accepted and settled was cut back after 2012 (Envisioning, 2015, p. 11).
The truth of people’s sexual orientation or gender identity (SOGI) is also decided in the decisions of the Immigration and Refugee Board (IRB) for non-sponsored refugees in Western terms, based on essentialist theories of differences in SOGI. This perspective views LGBT characteristics as innate, essential and often as physiologically based (Kinsman, 2003). If the person has no same-gender girlfriend/boyfriend, has children, is married to a member of the other gender, is not publicly ‘out’, or their story seems inconsistent with essentialist theories of sexuality and gender identification since their experience has been more fluid than fixed (Rehaag, 2008), they have been rejected, even if these decisions have sometimes been overturned on appeal.
Given that sexualities and genders are culturally and historically made and can shift in people’s life experiences (Kinsman, 2003), this approach does not lead to an adequate grasping of these social experiences. It also raises questions about who gets to define what queerness is, or whose definition of LGBT it is that asylum seekers have to fit into. It can lead to the denial of other social practices of gender and eroticism. Some of the problems with these decisions that impose a definition of LGBT on to the experiences of people from the Global South will be detailed later in this chapter.
This identification process also points to an involvement of some LGBT agencies in the new regulatory regimes that asylum seekers face. It is based on refugee claimants having to perform to state officials and sponsoring groups that they are really LGBT. This is difficult to prove, given the situations they have come from. It also may make little sense in terms of people’s sexual and gender practices and the social organisation of gender and sexual relations in the countries or communities they are fleeing from. While creating important possibilities for those fleeing sexual and gender oppression, this can also be part of a new regulatory regime imposing Western hetero/homo-derived classifications and LGBT definitions on to the experiences of people coming into Canada.
This regulatory project is one of making ‘good’ refugees, ‘responsible’ LGBT people, and ‘proper’ citizens and national subjects. There are similarities here with other forms of settlement work (including multicultural forms) for immigrants and refugees that makes them into ‘proper’ refugees, permanent residents and especially citizens in the context of Canadian state and capitalist social relations. This is also why it is important to be able to operate simultaneously and dialectically within, against and beyond (Holloway, 2005; 2016) current refugee and border regulations. Despite claims that limitations are needed because there are strains on Canadian infrastructure, the regulations must be used and stretched to provide entry and support for as many people with need as possible, through direct action support work and campaigns, to organise against restrictive regulations that deny status to many people, and push beyond them for an alternative that permits all who need to enter and stay in Canada.
At times, accepting refugees is viewed within Canadian LGBT community formation as ‘saving’ these people from backward homophobic cultures. Sometimes they are viewed in a normalising gaze as children in need of proper socialisation to become adult LGBT people like those in the West. This approach can carry with it important ‘civilisational’ aspects, when imposing Global North constructions of what is civilised on to people of colour from the Global South. Orientalist forms of homonationalism (Gentile and Kinsman, 2015; Dryden and Lenon, 2015; Said, 1979; Puar, 2007) inform this perspective, constructing people from Muslim and Arab backgrounds and other people from the Global South as coming from ‘bad’ homophobic cultures.
There are two different but related ways this is deployed. One is in an overtly racist fashion, arguing that these people’s cultures and societies – and by implication these individuals – are backward and homophobic, compared to those of the civilised West. At the same time, many of them do encounter heterosexism and anti-trans practices in their own communities and in the broader society. This racist response blends into racism towards people of colour more generally, including that which exists in LGBT community formation against people of colour. As one round-table participant put it: ‘There is rampant racism in the LGBT community’ (Envisioning, 2012, p. 11), and it is important to remember that the pervasive racism faced by LGBT refugees and migrants of colour is also generated within LGBT communities. Himani Bannerji (1995) also points out that these more extreme and overt forms of racialisation rest on more common-sense forms. And often what appears to be a well-intentioned ‘missionary’ approach of trying to save LGBT refugees from their bad cultures also rests on a common-sense racism that constructs them as passive victims, denying them agency and subjectivity. Although different from the more extreme racist response, this is also a form of racism.
This chapter explores the policing and bordering of LGBT refugees by sketching out these developing relations while raising questions that need to be pursued further. The aim is not to provide definitive answers but to open up a broader conversation about these matters.4 It investigates a major contradiction between the formal right of LGBT people to claim asylum in Canada and the obstacles which deny that claim to many. Formal right of acceptance of LGBT refugees occurs at the very same time that neoliberalism is tightening borders in the North against poorer people of colour from the Global South, and making it less possible for them to claim asylum. So although Canada is a safe haven for LGBT refugees on a formal level, is it so in practice? As we shall see, for the vast majority of refugees and migrants – including those denied status – Canada is not a safe haven.
This investigation brings together insights from the Envisioning Canada research team (Envisioning, 2012, 2014, 2015) and critical studies of immigration, refugee and migration policies (Wright, 2006, 2017; Anderson et al., 2012; Balibar, 2004; Nyers and Rygiel, 2012; Mezzadra and Neilson, 2013), including work on queer migration (Luibhéid, 2008; Luibhéid and Cantú Jr, 2005) alongside my work on the making of the neoliberal queer (2016, 2017a), and accounts of the neoliberal transformation of state and social relations globally and within Canadian state and social formation (Sears, 2003; McNally, 2006). The social relations of neoliberalism have reshaped immigration, refugee and border policies, which organise this contradiction between formal rights and the actual obstacles and barriers produced through administrative practices.
External and internal border barriers
Envisioning provides a global context for looking at the refugee determination process, including from the social standpoints of those in the Global South and refugee camps. Major barriers stop people from ever getting to Canada. Material circumstances and social possibilities prevent people from being able to afford to get to Canada or to apply for and receive visas. People are also unaware that they can claim asylum in Canada as an LGBT person facing harassment and discrimination. Barriers include the conditions in refugee camps, the lack of Canadian government offices and officials in many parts of the world (some were closed down or their operations were reduced, and some files were closed under the Harper government), and the difficulties in getting accepted as refugees by Canadian officials.
For instance, Envisioning Africa research team member Eric Gitari, executive director of the National Gay and Lesbian Human Rights Commission in Kenya, reported on conditions in refugee camps in Kenya − where he has done support work and research − for those fleeing anti-LGBT laws and discrimination in Uganda. He described homophobia in the asylum regime, including police harassment and the denial of confidentiality, which leads to identification and violence (Envisioning, 2015), and also how, for many LGBT asylum seekers, the excessive documentation required by the Canadian government effectively makes resettlement in Canada very difficult. As he points out: ‘The lived reality on the ground, and the policy by your government are very disconnected’ (2014, pp. 16–17). The Canadian government often falls short of meeting its pledges because its standards are too high, there are many administrative barriers and it is notorious for taking a long time to resettle people (ibid., p. 17).
At the same time, there are major internal barriers for those who are able to get to Canada. These include the refugee regulations themselves, the need to demonstrate they are really LGBT, racism, difficulties in getting social assistance, housing and employment (when many employers require ‘Canadian experience’), living in poverty, cuts to services, concerns about safety and personal security, and problems in accessing health services (Envisioning, 2015). Asylum seekers who are LGBT also face all the problems that refugee applicants face with the tightening of Canadian border policing. Although much of this chapter focuses more on these internal barriers, they are also informed by pervasive external barriers. Whether internal or external they have a mediated or mutually determined character, which combine to make things more difficult for all asylum seekers not just LGBT ones.
Racialisation, formal rights and the tightening of border regimes
While neoliberalism allows capital to move around the world freely (McNally, 2006), it leads to a tightening of borders for people of colour from the Global South. This causes an intensification of state formation in relation to border regimes, including surveillance, detention, deportation and normalisation. The dilemma is that the achievement of formal rights and neoliberal attacks occur at the same time with the former having been enacted in the context of neoliberal tightening of borders against people of colour. Although neoliberal border regimes can provide formal rights, which is a step forward, they do not provide a substantive right. For instance, we all have the same formal right to stay in the most expensive hotel in the city, but in reality we don’t because many of us simply can’t afford it. Regarding asylum seekers, although all LGBT people may have the same formal right to claim asylum in Canada, in practice, most are denied that possibility because of their material and social circumstances and because of the barriers built into the regulations. Formal rights remain trapped within the current social form5 of border regimes.
As Dean Spade (2011) points out, it is important to focus on the administrative law and regulations through which substantive barriers are constructed. They affect different groups of people differentially, including the social variation between those who have the resources to obtain a visa and get to Canada on their own, and those who do not. As one round-table participant put it: ‘People who are poor have a disproportionate experience of harm because of their orientation, and these are the people who cannot get here because they don’t have the assets. The situation is only going to get worse’ (Envisioning, 2012, p. 6). A visa is required for residents of most countries, but is difficult to obtain. People with financial resources and connections can get into Canada, but many can only make it across the border into adjoining countries, end up in refugee camps, and are far less likely to be selected by Canadian officials as refugees. This situation has shifted somewhat recently as the Canadian Liberal government has been accepting thousands of Syrians from refugee camps.
In the Canadian context, as Cynthia Wright (2017) points out, Western LGBT organisations have undertaken the fight for legal equality in the immigration system at the same moment that many states are transforming the post-World War Two immigration and refugee regime informed by neoliberalism. Many LGBT immigration and refugee activists see this struggle in narrow LGBT terms, because for many it developed through support for formal equality rights within general acceptance of the social form of state immigration and refugee policy. These struggles won some acceptance in some countries, including Canada, starting in the early 1990s. Some of those fleeing their countries of origin because of gender and sexual oppression can now claim LGBT status as refugees in Canada and 41 other countries (Envisioning, 2015, p. 11).
The contradiction is that, although there is a focus on immigration and refugee rights for LGBT people, immigration and refugee status more generally is increasingly precarious, as more people have their applications denied and live without status. As a result of these changes including Bill C-31, which will be addressed later, there was a 20 per cent decrease in family class immigrants (from 2006 to 2011), a 30 per cent drop in accepted refugees, and a 50 per cent drop in refugee claims (from 2006 to 2012). In the period 2006–14 there were 87,317 detentions and 117,531 deportations (Never Home: No One Is Illegal – Vancouver, 2015). Asylum claims went from 20,500 in 2012, to 10,380 in 2013, to 13,450 in 2014 (UNHCR, 2015). All of these changes have an impact on LGBT immigrants, refugees and migrants. But until recently there was little critical analysis of this development among queer activists.
A narrow and limited rights politics cannot address the complexity of border regimes. We cannot simply fit into neoliberal shifts in immigration and refugee policy and attempt to modify them, which those supporting formal equality sometimes seem to do. Refugee politics must also address the needs of those whose applications are refused and those without status. This group is growing and includes many queers.6 Even the granting of ‘status’ from state agencies is far too limited since it is entirely reliant on state bureaucratic processes and a move beyond a politics based on state-approved paths to citizenship is needed. Addressing these concerns moves us far beyond rights politics to address the construction of border regimes beyond the geographical border. This includes not only interactions between the police and border security, but denial of social assistance and health services to people without status, as well as the normalisation of queer migrants to ‘work them up’ as proper LGBT refugees, which is also part of ‘border work’ in a broad sense. An analytical approach is needed that addresses bordering practices and learns from boundary struggles (Mezzadra and Neilson, 2013). Such a perspective involves the interruption of regimes of detention, deportation, surveillance and normalisation.
My perspective is also informed by No One Is Illegal (NOII) activism. Emerging from the struggles for migrant justice and global justice, the NOII approach calls for the elimination of borders and for status for all. In this view, people have the need for and right to full status since they are people in a global community. From this viewpoint, it has been a mistake for rights to social access and status to reside only in the nation state; this approach moves beyond the nation state, and the derivation of rights from citizenship (Walia, 2013; NOII – Toronto, 2015; NOII – Vancouver, 2015; Anderson et al., 2012). In this view, people need freedom to move, to stay, and to return. It recognises that people need to move because of displacement, misery, poverty, underdevelopment, war, the closing of the global commons and forced eviction from the land as more commodification of social life takes place (McNally, 2006), and climate change among others. People from the Global South follow wealth to more affluent countries like Canada that have been overdeveloped through imperialism and exploitation. Some also flee sexual and gender oppression, although this may be only part of their overall social experience.
Some of these people are classified as migrants, while others are categorised as refugees. It is important not to separate the latter as a class of people distinct from others who are crossing borders. One way to escape persecution and to improve situations is to move and to claim refugee status. This approach views migrants and refugees as negotiating and sometimes defying and resisting border regimes (Nyers, 2015; Hardt and Negri, 2000, pp. 210–14). Migrants are putting borders in question as tens of thousands have hit the borders of ‘fortress Europe’ engaging in mass direct action with local activists’ assistance to push through fences, across frontiers, and on to trains, to try to build new lives.
In bringing together what has been learned from Envisioning’s Canada research team with NOII perspectives, this chapter also draws upon the work of Himani Bannerji (1995) on the mediation of social relations and social differences. Bannerji views different social experiences as having their own moment of autonomy, or specificity, but at the same time they are also mutually constructed through other social relations. There is a need, as Envisioning research has done, to focus on sexuality and gender identification as one important moment of analysis, since these are not the same as other social experiences. But at the same time, sexuality/gender is also mutually constructed through race, class and state relations. Envisioning began to undertake a wider approach with its adoption of an intersectional analysis where all forms of oppression intersect7 but a social mediational approach pushes this analysis further. Asylum seekers’ experiences of sexuality and gender identifications/practices must be addressed, but that stance must include the broader social context of state formation and border regimes. If the focus is on sexuality/gender identifications only, it will not be possible to fully grasp where border problems originate. There must therefore be movement beyond a limited LGBT rights framework. There is a need to expand upon the insights gained from Envisioning research to address racism much more centrally as recommended in the Envisioning report (2015). The specificity of sexual and gender oppression must be focused on, but it must also be placed in the context of racialisation and the transformation of border regimes more generally. This requires making it easier for all asylum seekers and migrants to cross borders, which involves reducing administrative obstacles and substantive barriers to movement and status.
Despite these substantial barriers, and escalating numbers of deportations, Canadian officials have presented themselves on the global stage as being more ‘civilised’ on LGBT questions than countries in the Global South, by using the figure of the ‘gay refugee’. For instance, in the fall of 2012, drawing on a form of orientalist homonationalism (Gentile and Kinsman, 2015; Puar, 2007), immigration minister Kenney sent an email to representatives of Canada’s LGBT networks heralding the Conservative government’s attempts to make Canada ‘a safe haven for Iran’s persecuted gay community’ (Wright, 2017, p. 250). Here the figure of the gay refugee as passive victim of the Iranian regime was mobilised, ripped out of the context of gender and sexual life in Iranian society. At the same time some people in that country are experiencing major problems, with some needing to flee. In response, some 50 activists wrote an open letter that criticised this attempt to use LGBT people and refugees to buttress Canadian state moves against the Iranian government, given that this came shortly after Canada closed its embassy in Tehran and sent home Iranian diplomats based in Canada. The letter went on to recall those queer refugee claimants who had been denied asylum because of the IRB’s heterosexist and anti-trans assumptions and decisions. This exposed Kenney’s hypocrisy (Wright, 2017; Envisioning, 2014). Under the Liberal government the contradiction has intensified, because their emphasis on refugees from Syria has led to Iranian LGBT refugees in Turkey being told to apply to go to the US instead. They are now caught up in the Trump administration’s ‘Muslim ban’ and other immigration measures which, if successful, could prevent people from Iran being accepted in the US (Robertson, 2017a; 2017b; 2017c).
While migrant justice activists have criticised the Canadian government for using the figure of the gay refugee as a weapon against countries in the Global South – and Arab-and Muslim-identified people, in particular – some in the gay/lesbian community have argued that Canada saves LGBT refugees from their homophobic cultures and societies.8 Others concede to the Canadian state on these questions. One instance was the very different responses of EGALE (a cross-country LGBT rights group) and NOII to the revelation that Kenney had made a request in 2009 to delete references to same-sex marriage from a citizenship guide. Whereas EGALE adopted a conciliatory approach to the government, NOII led demonstrations and a broader critique of the heterosexist, racist and sexist policies of the Canadian government. And when Bill C-31 was introduced, EGALE offered a limited critique, while NOII’s much deeper and broad-ranging critique moved far beyond queer-related questions (Trevenen and Degagne, 2015, pp. 102–7). Despite the useful work of the Rainbow Railroad in assisting people from around the world to get into Canada, there is a problem with the assumptions its name is based on. As Dryden and Lenon (2015, pp. 10–11; authors’ emphases) point out:
The deployment of racial analogies, in which discrimination against same-sex couples is now like oppression faced by African Americans then, evokes an ‘earlier’ politics of race as the precedent for a ‘later’ gay rights struggle. Such an analogy enables the privilege of forgetting race, with the result that there is little or no accountability to historical and contemporary anti-racist struggles.
In response to those within LGBT communities who argue that ‘we’ are saving LGBT refugees from the Global South, the actual record of the Canadian state needs to be made clear.
The rest of this chapter will examine the textual practices of refugee construction and the refugee work of LGBT asylum seekers. It will then outline the impact of capitalism, borders and racialised class relations; neoliberal border regimes and what neoliberalism is, including the transformation of queer/LGBT politics with the emergence of the neoliberal queer; and it will examine Bill C-31 and changes in the continuing neoliberal transformation of immigration and refugee policy. The conclusion will include suggestions for a broader no-one-is-illegal approach that centrally addresses sexual/gender experiences.
Before this investigation of the impacts of neoliberalism on border regimes continues, it is important to understand more about the textual practices through which the successful LGBT refugee is produced, and also how textual regulations are used to coordinate the unpaid refugee work that prospective refugees need to engage in.
The textual practices of refugee construction
The determinations of border regimes on whether individuals fit into the ‘refugee’ category are not simply the results of bad or good individuals, or bad or good decisions. These determinations are coordinated through text-mediated social relations (Smith, 1990) and it is important to map out how textual regulations are organised against most migrants and asylum seekers. Although only a preliminary sketch can be provided here, to be textually constituted as an LGBT ‘refugee’ in the Canadian context, it is necessary to demonstrate that the applicant is a member of a particular social group, in this case LGBT,9 and is fleeing persecution on that basis.
The official process of refugee determination can be understood as one of inscription (Smith, 1990) in which certain aspects of people’s experiences are lifted out of the context of their broader social experiences and relations and placed into official categorisations like ‘LGBT’ and ‘refugee’. As mentioned, there are two moments in this text-mediated process of being inscribed successfully into the category of ‘refugee’, which shapes the work in which they engage. In the IRB process, the Basis of Claim form is key to this inscription. It must detail a narrative of being LGBT and of having experienced persecution on this basis in the home country (Murray, 2016, pp. 46–8). As Murray points out: ‘Claimants learned that the personal narrative was not simply a matter of telling their “life story” as they saw fit – there was a particular structure or framework for the narrative and it had to include important features . . . that addressed the jurisprudential objective of determining credibility of a refugee claim’ (ibid., p. 47).
People who become ‘refugees’ can be moving for a whole series of reasons, but this needs to be textually inscribed and regulated through official texts and discourse if the applicant is to become a ‘refugee’. Asylum seekers are never simply queer or LGBT. Out of the diversity of their experiences they must construct a narrative – often modelled on a coming-out story – based on essentialist theories of sexuality and gender. It may not mesh with their experiences. Central to this successful inscription is the ‘credibility’ and ‘consistency’ of the narrative (Sevigny, 2011; 2012).
Asylum seekers must be able to get themselves inscribed into the list of enumerated groups and demonstrate that they have experienced persecution on this basis. Both elements must be established for the applicant to become a textually constituted refugee. This helps to coordinate the work that asylum seekers and their lawyers and advocates have to do in order for them to be accepted as refugees. This is how the latter are constructed, and this is why the person quoted at the beginning of this chapter wanted to learn who the ‘real gay’ refugees are. That individual was not looking at this question from the social locations of people needing to move, but from the position of being enmeshed within these state-defined administrative practices that include identification of LGBTs as central to refugee sponsorship. In this case, identification, which can also have the more empowering connotation of claiming or making an identity (Bannerji, 1995), is coded with relations of social power, and freezes people in an essentialist fashion so they can be dealt with administratively (Holloway, 2005).
The refugee work of LGBT asylum seekers
These textual practices coordinate the work that refugees must engage in. Here, I draw upon Dorothy Smith’s (2005, pp. 151–2) broader notion of work as ‘anything done by people that takes time and effort’.10 Later this process was extended to the ‘hooking up’ efforts made by people living with AIDS/HIV (PLWA/HIVs) to access social assistance (Mykhalovskiy and Smith, 1994) and the unpaid ‘health work’ of PLWA/HIVs and others (Mykhalovskiy and McCoy, 2002). Christophe Sevigny (2011, 2012) extends this approach to refugee work, especially the remembering work required of refugees during interviews and when filling in forms (including retelling the story of traumatic events), and the exceptionally long wait they have to endure in refugee camps while decisions are made about their resettlement. Sevigny describes this as ‘waiting work’. Refugee work takes multiple forms.
The work of LGBT refugees also involves constructing a ‘credible’ and ‘convincing’ personal narrative for the IRB, sponsoring groups and others. Whereas most refugees do not sufficiently develop their ‘organizational literacy’ (Darville, 1995) to fully grasp the textual practices that shape their social experiences, their work can entail learning about the refugee determination process. This can include: locating and talking to lawyers; going to support groups (whose letters are often now crucial in refugee determination); attending appointments; filling in the Basis of Claim form (which becomes a central text for IRB procedures) and constructing a personal narrative (Murray, 2016, pp. 45–9); collecting letters and other documentation (where possible); talking to others from the same area; preparing for IRB hearings; and the everyday work of survival. This survival work includes: securing housing in shelters or low-cost apartments;11 applying for financial assistance from Ontario Works and staying on it; registering for a temporary social insurance number (Murray, 2016, p. 43); gaining legal employment if they have a work permit and ‘illegal’ work if they do not; accessing healthcare; and much more. This work is often done while experiencing poverty, lack of support, racialisation and stigmatisation. Refugees are highly active in this process (Sevigny, 2011, 2012). LGBT refugee work is an active attempt to be inscribed successfully into the categories of ‘refugee’ and ‘LGBT’ – into a certain way of working up sexualities and genders. This work can have a very performative character in the construction and repetition of a personal narrative about being LGBT and facing persecution in the country from which they have fled.
This work, articulated to the legal regime that governs refugee determination (Murray, 2011, p. 133; 2014, 2016), becomes normalised through filling in forms and learning from lawyers and support groups how to perform themselves as a Western LGBT person would (Murray, 2016). Through his involvement with LGBT refugee claimants and newcomer groups in Toronto, Murray (2011, p. 127) describes this work in terms of formal and informal integration and adaptation as they ‘learn about the Canadian nation-state, citizenship, and queer identities and communities and in so doing enter a space/moment of becoming “refugee” as they learn the social, cultural, and bureaucratic processes and norms of the Canadian refugee apparatus’. In other words the ‘refugee’ emerges only as an official categorisation in this set of relations. Murray (2014, p. 21) describes how, ‘despite the deeply diverse social, sexual and migration experiences of these individuals, an already existing set of socio-sexual-political classifications of the destination state forces closure of potential through its commensuration with existing norms’. At the same time, even though these claimants may learn to perform themselves as LGBT in a Western sense in order to become accepted as ‘refugees’, this does not mean that they subscribe to these identifications, and they may resist, holding on to aspects of their indigenous sexual/gender practices or producing more hybrid forms, merging aspects of their indigenous and more Western practices.
History, capitalism, sexuality/gender, borders and racialised class relations
To place this investigation in a broader historical and social context requires a shift from the standpoint of state regulations, to look at the world from the social locations of migrants and asylum seekers, thus presenting a different and far-sighted perspective (Smith, 1987; Bannerji, 1995). It is necessary to start with the needs of migrants and asylum seekers, which entail a critique of racialised immigration and refugee practices and of neoliberalism (NOII − Vancouver and Toronto, 2015; Walia, 2013).
Capitalism, as a social relation between workers and those who own the means of production broadly defined – based on the exploitation of waged and unwaged labour – is also a bordering practice. This is given its continuing organisation through nation states and citizenship, but also its ‘multiplication’ of labour with citizen-labour, as well as precarious, temporary, illegal and unpaid forms of labour (Mezzadra and Neilson, 2013). As already mentioned, neoliberal capitalism leads to a growing displacement of people in the Global South. People are also fleeing civil wars and conflicts produced largely or partially through Northern and Western interventions in countries like Iraq and Syria. As I write this, hundreds of thousands of people have fled the civil war in Syria, and within that the forces of the Islamic State (IS). The roots of IS lie in the US-led invasion of Iraq and the militarisation by Western powers and the Assad regime of the initial Syrian conflict, which emerged from the Arab Spring-inspired revolts (Hanieh, 2015). At the same time as its move towards accepting more refugees from Syria, the Canadian state was still in the process of deporting people back to that country (Behrens, 2015, p. 14). The recent waves of refugees from Syria and other countries, and the hardships they have endured, have opened a humanitarian and sponsorship focus on refugees from that region which, although crucial, has tended to eclipse the needs of people fleeing from other areas.12
Simultaneously, as mentioned, neoliberalism leads to reorganisation of border regimes, making it more difficult for poorer people of colour from the Global South to legally enter Western countries with long-term status. This leads to construction of growing pools of precarious, temporary and sometimes illegal labour, through immigration policies, alongside the more ‘traditional’ citizen labourer (Mezzadra and Neilson, 2013). This has a major impact on asylum seekers and helps to account for their growing numbers on a global scale but, as Rohan Sajnani puts it: ‘While refugee numbers globally continue to climb, Canada’s claim and grant rates have sharply declined relative to other host similarly situated receiving states’ (Envisioning, 2014, p. 5).
Capitalism as a globalising force has also been unevenly imposing Western-defined sexual and gender binaries on the rest of the world, shaped in part by the forms of resistance they encounter. Clearly, sexual and gender formation has taken on a more global character since capitalist relations emerged, especially through colonialism, imperialism and Western-imposed forms of ‘development’. In many parts of the Global South the criminalisation of same-gender sexualities is rooted in colonialism and imperialism (Lennox and Waites, 2013) and some nationalist forces in postcolonial states took it up as part of the defence of national tradition. The Western-imposed mode of development on the Global South included the construction of patriarchal relations and the imposition of institutionalised heterosexuality. This helped to create the social basis for the emergence of a naturalised majority ‘heterosexuality’ and a minoritised ‘homosexuality’ in parts of the Global South. Neocolonial and ‘development’ strategies initially reinforced tendencies to impose heterosexuality in the Global South. Later, they also opened spaces for some nationalist forces and morally conservative strands of neoliberalism to mobilise against queers, and gender and sexual diversity − in Africa and elsewhere − in the context of the displacements and disruptions of people’s lives through neoliberal capitalism (Rao, 2015). In Russia, the attacks on ‘promoting homosexuality’ are linked to attacks on the social position of women, including their reproductive rights under cover of defending ‘traditional values’ in an attempt to undermine the limited gains women won in the former Soviet Union (Erofeeva, 2013).
Capitalist globalisation is now exporting the hetero/homo and male/female binaries around the globe, where they have an impact on other erotic and gender practices that cannot simply be understood through these binaries, for instance, where more than two gender groupings exist (Drucker, 2000, 2015; Massad, 2007; Altman, 2001). Drucker describes this as a process of uneven and combined social construction of sexualities.13 This approach makes it clear that no single monolithic process is going on across the entire Global South, rather, what can be called ‘indigenous erotic and gender practices’ are being supplanted in some places by the hetero/homo distinction, while in others there are combinations of Western and other forms. The social transformations of capitalist globalisation are altering social relations in many countries, opening up possibilities for the emergence of both heterosexuality and homosexuality (Drucker, 2015), while affecting people in diverse ways. Now some people in the Global South identify (at least in part) through these initially Western-defined constructs of homosexual, gay, lesbian, bisexual, trans*14 (Tompkins, 2014) and queer. Often these are people who have more access to Western popular culture and the money to purchase Western lifestyle commodities (Drucker, 2015). At the same time, others continue to participate in practices of eroticism and gender that may not cohere in a distinct social identity. Others have made hybrid forms, mixing elements of Western constructions with more indigenous practices. In these societies a social organisation of eroticism in relation to families and communities often exists which is different from that in the West. To address this diversity of experience, gender and sexual formations, an internationalist critical sexual and gender politics is required that resists Western classifications.
In this global context, the refugee regime becomes part of the construction of these asylum seekers as proper LGBT residents of Canada, imposing these classifications on their experiences. This regime can impose essentialist sexual definitions and gender identification as the ‘truth’ of people’s beings (Foucault, 1980). In this way the refugee determination process becomes part of the imposition of these binaries on people moving around the globe.
These border struggles must be placed in the context of the history of immigration in a racialised capitalist society built on indigenous land. Immigration policies helped to produce a racial division of labour in Canada, with white persons generally at the top and people of colour and indigenous people generally at the bottom. This division was accomplished in part by bringing in poorly paid people of colour when there was need for cheap labour (Bannerji, 1995; Thobani, 2007). This produced a racialised, classed and gendered social formation. Until the late 1960s immigration policy was explicitly racist, with white people preferred. This racialisation was continued less overtly with the introduction of the point system (Thobani, 2007, pp. 96–7). Now the focus on work permits continues racialisation with the temporariness of work and denial of rights and benefits. This is the racialised division of labour that the border regime is built upon and continues, even if no longer in an explicitly racist fashion, and it shapes the experiences of migrants of colour. It is crucial to note that formally weakened racialisation continues in practice and has a major impact on LGBT asylum seekers and migrants of colour.
From the 1950s on, with pressures from the national security regime, immigration policy also came to be explicitly heterosexist. The other side of this exclusion was the construction of heterosexual hegemony, which established heterosexuality as the ‘safe’ and ‘secure’ type of sexuality (Kinsman and Gentile, 2010). There were also heteronormative relations constructed in immigrant communities through the family class system, which normalised a male-dominated heterosexuality. The family class was based historically on constituting the proper heterosexual couple in racialised communities (Wright, 2017).15 The family class was certainly heteronormative and was part of the construction of these relations in immigrant communities, but it also allowed some families from the Global South to gain status. It is now being slashed, and sponsorship of family members has been made more difficult for those without higher incomes.
A new situation was created when the Canadian state became willing to accept LGBT refugees into Canada officially. This new position is in marked contrast to the complete official exclusion of queers from immigrating into Canada, stemming from the early 1950s, and officially ended in 1977 as one of the first human rights victories of the early gay and lesbian movement (Kinsman and Gentile, 2010, p. 252; Kinsman, 1996, p. 170; Girard, 1987).
The shifting figure of the refugee
There has been a shift in the character of the refugee that includes the racialisation and problematisation of the refugee (Wright, 2017). Their image has been generally recast from ‘good refugee/bad economic migrant of the past to bad asylum seeker/good economic migrant’ – with the partial exception of the recent focus on Syrian refugees. Refugees have until recently been cast by politicians and the mainstream media as bogus, arriving through criminal means and therefore warranting more stringent regulation. The refugee claimant is often still portrayed as illegitimate, and this view was one of the main motivators for Bill C-31, which will be examined later. In her writings on the social construction of immigrant women, Roxana Ng (1996) showed how this category was racialised, as it is now with the refugee. More recently this racialisation has intensified in respect of those coming from Muslim-identified countries and the Islamophobic16 responses that this has generated. In Canada this has included the massacre at the Québec City Mosque and the organising by far right groups against Muslims (Hussan, 2017).
The figure of the gay refugee is deployed in this context. As Reddy (2011, pp. 163–4) argues, this figure is ‘formed in the contradiction between heteronormative social relations mandated for immigrants of colour by the state’s policies and the liberal state’s ideology of universal sexual freedom as a mask for growing these social relations’. This can allow for them to be posed in a more homonationalist light, but asylum seekers of colour also face this racialisation.
As already suggested, neoliberalism has a major impact on immigration and refugee polices. But what exactly is it?
What is neoliberalism?
Understanding neoliberalism requires an analysis anchored in class and social struggles.17 Neoliberalism emerged as a distinct capitalist perspective in the mid to late 1970s through the articulation into a distinct project of several currents of economic and moral conservatism. The concept was introduced in Canada unevenly, and not until the 1980s did it begin to centrally inform state policies.
Neoliberalism is often understood simply as opposition to earlier Keynesian perspectives, which focused on social funding and the welfare state. Instead, neoliberalism concentrates on cutting back social programmes and expanding private capitalist relations. However, placed in the context of social struggles, Keynesian approaches were rooted in a wave of class and social struggles in the West during and following the Great Depression. In the post-war years in the Global North, this wave of struggle won greater access to social programmes and more rights for workers. In response to this composition of class struggle,18 Keynesianism attempted to save capitalist relations through limited concessions to workers and people living in poverty. At the same time, however, these concessions continued exclusions and differential inclusions that affected the lives of women, people of colour, indigenous people, queers and non-citizens, and included the building of national security relations. These regulations included restrictive but also somewhat ‘liberalised’ border regimes, which admitted more people of colour as cheap labour, both as temporary workers (like domestic workers) and as immigrants, who were often constructed in a heterosexual fashion through the family class system (Wright, 2017). This loosening provided more openings for asylum seekers of colour from the Global South, but racist practices continued.
In the 1960s and early 1970s, there was another global cycle of class and social insurgency – of which feminist and gay revolts and Third World national and social liberation movements were a part – that called colonialism, along with capitalist social relations, into question. In response to these struggles, Keynesianism was now seen in capitalist and state circles as giving too much social power to workers and people living in poverty. Conversely, neoliberalism aimed to restore profitability and capitalist relations through undermining this composition of struggle by dismantling social programmes, targeting the social wage, and attacking workers and the poor around the world (Drucker, 2015, pp. 220–8). These cuts to social programmes also led to intensified reproductive and domestic labour assigned largely to women and have had a major impact on gender relations. Neoliberalism also laid the basis for new waves of capitalist globalisation through free trade and other regional and international agreements.19 This expansion of neoliberalism also relates to strategies of development through international financial institutions that initially were part of the imposition of heterosexuality on societies in the Global South (Rao, 2015). This ‘development’ causes many to be displaced from the land – as it is privatised and commodified – and leads to impoverishment, forcing many people to migrate.
Despite weakening state formation regarding social programme funding, disciplinary forms of state formation were intensified, including campaigns against unions, for ‘law and order’, against immigrants, and the tightening of borders against poor people of colour from the Global South.
Especially in the 1970s and 1980s, neoliberalism exhibited a moral conservatism in Western countries, focusing on disciplining workers and the poor, including attacks on feminism and gay and lesbian liberation, in order to defend the heterosexual and patriarchal family coded as white and middle class (Gordon and Hunter, 1979). Neoliberalism in much of the world maintains a moral conservative approach to women, gender and sexual diversity. In Uganda, anti-LGBT initiatives are supported by moral conservative Christian forces from the United States, but the ravages of neoliberalism and capitalist globalisation open up a space – for some nationalist forces and moral conservatives – where ‘homosexuals’ can be scapegoated (as ‘foreign’ in character) as causing the social problems in these societies (Rao, 2015).20
But moral conservatism was not the only form of neoliberalism to emerge. Non-moral conservative forms based on limited moral deregulation of queers (Sears, 2005) emerged in the later 1970s in countries like Canada, to allow for a privatised homosexuality and community and a consumer-focused form of citizenship (Kinsman, 2013). In part, the non-moral conservative strands of neoliberalism appeared in response to the resistance to moral conservatism by feminists, gays and others. The struggles of queer movements and the space opened up by the Charter of Rights led to growing equality rights for LGBT people, including in immigration. These led to the emergence of the neoliberal queer and the homonationalist use of the gay refugee, so that Canada could play a part in ‘saving’ gay refugees. But although there are major sources of tension between these forms of neoliberalism, they are united in support for tightened borders against most people of colour from the Global South.
There are at least three major moments of neoliberal impact on border regimes. First, there is the tightening of boundaries against immigrants, migrants and asylum seekers of colour from the Global South that prevents them from getting into Canada with permanent status (Goldring and Landolt, 2013). Such restrictions exclude people but also create a pool of illegal labour and of precarious workers without status who are denied rights and benefits, and who can be deported at any time. Bill C-31, which will be examined later, intensified these practices.
Second, there is the shift towards and a greater use of temporary migrant workers, who have few rights or social supports (Sharma, 2006). They only have temporary work permits and can be brought in when needed and ejected easily, as they are denied the regular rights that most Canadian workers have. There is a direct connection here to the neoliberal reorganisation of labour, including flexible/lean/agile (Sears, 2003) and just-in-time production. These capitalist management strategies lead to mass production being torn apart, which leads to massive layoffs and forms of production in which workers can be transferred and shifted as needed. These temporary workers face major forms of exploitation and oppression.
Third, there is the downloading of state responsibilities and funding for the services and support available to those who do get in to the country to community networks and organisations via sponsorship programmes. This includes the transfer of integration and normalisation work for LGBT refugees to sponsoring groups and agency-based newcomer groups. Health support to refugees was cut by the Conservative government and was also part of a broader privatisation agenda.
The neoliberal queer and homonationalism
Some currents within gay/lesbian community formation participate in homonationalism, neglecting the practical difficulties that queers of colour face in getting into and staying in this country, and the pervasive racialisation they face in Canada. How did this come about? First, by the mid 1970s, the broader liberationist approaches of the early 1970s had shifted to a more limited strategy based on human rights. Consequently, political organising focused on struggles to gain formal legal equality with heterosexuals. Fighting for sexual citizenship (Evans, 1993) began with the protection of sexual orientation in human rights legislation. There followed a trajectory of struggle for inclusion within the legal and social forms of: spouse, family, marriage, the military, national security, immigrant and refugee. The moment of possible radical transformation of these social forms instead gets subordinated to the moment of simply being included within these heterosexual-dominated, gendered, racialised and classed social forms. Major gains and important victories were won through these struggles, but they also reshaped lesbian, gay and eventually queer movements (Kinsman, 1996; Warner, 2002). By the mid 1980s, Section 15 (the equality rights section) of the 1982 Canadian Charter of Rights and Freedoms (from here on, the Charter)21 allowed lesbians and gay men to push forward on formal equality rights but did not provide for substantive social equality.
In a critical examination of sexual citizenship struggles, the question should be asked: ‘Citizens of what?’ This insight also clarifies that state formation and nationalism was clearly gendered, classed and racialised. Indeed, the citizenship articulated in these Charter-based legal struggles is connected to a growing incorporation into Canadian nation-state formation of social layers within LGBT community formation, and to an identification of this colonial settler-state form as the road to equal rights (Kinsman, 2001). The impact of the Charter and the struggle for sexual citizenship rights were central to this transition.
Participation in homonationalist practices by people from queer communities did not happen overnight but came about through social transitions in movements, communities and struggles, as well as the legal and social victories of gay and lesbian movements. Together, these social transitions and legal victories transformed a radical, transgressive social movement into a largely accommodationist project (which is still contested). These shifts occurred within a settler homonationalist context, where an earlier opposition to Canadian national security and sexual policing grew to identify with Canadian nation-state formation based on the colonisation of indigenous peoples. For many, the Canadian state form became the vehicle for rights and liberation. Later more Orientalist or ‘Islamophobic’ forms of homonationalism were built on this settler homonationalism (Gentile and Kinsman, 2015).
Through these struggles and transitions, a largely white, middle-class and male class layer rose to the top within LGBT community formation and established its hegemony. It developed its own class project (which was never named as such) and presented it as the perspective of the community. This reshaped LGBT community formation and accommodated queers with neoliberal class relations (Duggan, 2003). This group argues for formal equality, including within the categories of immigrant and refugee, but moves away from challenging racism and other forms of oppression beyond narrowly defined LGBT concerns. The rights of LGBT people came to be defined in a limited fashion abstracted from class, poverty and often racialisation. This social/class layer provides the basis for the emergence of homonationalism and for what I describe as the neoliberal queer (Kinsman, 2016; 2017a). The homonationalism based on this class layer presents major obstacles to the development of a radical queer anti-border politics.
Bill C-31 and continuing neoliberal transformations
Bill C-31 is one recent central facilitator of neoliberalism on immigrant and refugee policy, one that affects LGBT asylum seekers in important ways. Having been built on earlier neoliberal transformations of immigration and refugee policies, this legislation needs to be analysed in more detail.
Proposed by the Conservative government, Bill C-31 (Protecting Canada’s Immigration System Act) was passed in June 201222 and came into effect the following December. As stated in the Envisioning report on which this section is based, we understand ‘the new regime as decidedly anti-immigrant and anti-refugee’ (2014, p. 4). This legislation had a neoliberal character, making life more difficult for people of colour from the Global South and creating more difficulties for LGBT asylum seekers. The main features of this further neoliberal shift in immigration and refugee policy are summarised below.
Under this law people can now be detained for mere criminality, which can include suspicion of having engaged in low-level offences, such as traffic offences. They are no longer required to be a danger to the public to be detained (ibid., p. 14). This is especially a problem where widespread criminalisation exists in the countries of origin from which asylum seekers flee.
‘Irregular arrivals’ who enter Canada via boats or other non-legal means, and are deemed to have not crossed borders properly, are now defined as designated foreign nationals (DFNs). Although this designation is intended to target smugglers, it instead attacks asylum seekers, who are punished for their means of arrival, regardless of the merit of their claim, and covers ‘smugglers’ who have acted for humanitarian reasons. If this criterion was used against the thousands of Syrian refugees arriving in Europe, most would be defined as irregular arrivals. Currently those attempting to gain refugee status in Canada, who are fleeing the restrictions and bans imposed by the Trump administration in the US, are arriving by irregular means so that they will not be trapped by the Safe Third Country Agreement between the Canadian and US governments. This means that many of them will not be allowed to claim refugee status in Canada (Canadian Council for Refugees, 2017a, 2017b). This provision is directed specifically against the resistance in which people have engaged to bypass the legal procedures that prevent people from gaining status in this border regime.
This legislation includes the expansion of discretionary ministerial power, which leads to increased use of detention for irregular arrivals (Envisioning, 2014, p. 13). Such persons are subject to mandatory detention and are denied the right to apply for permanent refugee status until five years after a successful refugee claim or a determination of protection to a Pre-Removal Risk Assessment, whichever is later (ibid., p. 15). Successful claimants are denied access to refugee travel documents for five years and cannot sponsor family members. They are denied the right to appeal to the Refugee Appeal Division (RAD). They are also denied access to relief based on humanitarian and compassionate grounds and temporary work permits (ibid.). This approach is clearly intended to deter those using irregular means of arrival. Detention has become a major problem for asylum seekers and migrants. It is also a part of constructing ‘bad’ versus ‘good’ refugee applicants. Bad asylum seekers arrive through irregular means, while good asylum seekers follow proper procedures, although being ‘good’ is no guarantee that they will get into the country or be allowed to stay.
Furthermore, a new category has been introduced: designated country of origin (DCO). Countries on this list are designated by the immigration, refugees and citizenship minister as being respecters of human rights and the rule of law, and therefore as being generally ‘safe’ (ibid.). Countries like Mexico are included in this group. The assumption is that applicants coming from these countries have less chance of making a valid claim, and thus face accelerated timelines for their hearings, and fast removal without the opportunity to have a negative decision reviewed (ibid., p. 16). Until July 2015 people from DCOs were denied the right to appeal through the RAD. Three gay applicants challenged this denial in federal court and won (Envisioning, 2015, p. 20).
The DCO classification affects people fleeing sexual and gender oppression, since there can still be high levels of anti-queer and anti-trans violence and discrimination in ‘safe’ countries, in familial and other relations, as well as in the continuing criminalisation of same-gender sexual acts. It is important to understand the specificity of sexual/gender oppression rather than to perceive it as simply rooted in state practices.
More generally, Bill C-31 imposed accelerated timelines for all refugee claimants, and even shorter ones for those from DCOs. This can make it difficult for claimants to prepare their applications and secure the necessary documents and support letters. They intensify the refugee work in which asylum seekers must engage (Envisioning, 2014, pp. 17−18). More time is needed for refugee work – in order to contact lawyers, obtain evidence and construct a personal narrative – especially for queer claimants many of whom were not ‘out’ in their country of origin and have had little time or documentation to demonstrate persecution. Since applicants have little opportunity for community involvement, refugee determination gives special weight to letters from community organisations – such as newcomer support groups – which the applicants have to procure.
A new RAD has been established that can review IRB decisions. It allows for limited appeals of decisions, with major time constraints. In the legislation, DCO claimants and irregular arrivals were denied access to these appeals and were therefore vulnerable to removal orders (ibid., p. 20). The previously mentioned court decision overturned this denial for DCO claimants.
Provisions for humanitarian and compassionate grounds allowing permanent residency to be granted to people who may not meet the strict definition of a refugee, but who would face undue hardship if returned, were made more restrictive. Under Bill C-31 people can no longer seek refugee and humanitarian and compassionate protection at the same time, and rejected refugee claimants are barred from applying on humanitarian and compassionate grounds for one year after their rejection. This ban was also applied to irregular arrivals. Since they cannot apply from overseas, claimants must go underground until they can start the application process. A recent legal decision clarified that this provision must be applied in a flexible and responsive fashion (Canadian Council for Refugees, 2015).
‘Pre-removal risk assessments’ apply when those removed from Canada may face torture or risk to their life if deported to their country of origin. Under Bill C-31 people can be removed without this assessment and non-DCO claimants are banned for one year from applying for it, while DCO claimants are subject to a three-year ban. The same restrictions apply to those who have arrived via the United States or those found to be ‘convention refugees’ in another country.
While these processes are being sped up, decision-makers often rely more on stereotypes and credibility assessment. Questioning is more extensive and intensive than under the older system and can last several hours, again imposing more work on those trying to gain refugee status, and requiring them to recall often-traumatic events. Many of the decision-makers lack training generally, and on sexual and gender experiences specifically, so they often rely on Western-derived theories of sexual and gender identification that have almost become common-sense. Those not legible to them as LGBT in these frameworks may appear to lack credibility, especially given the difficulty of securing documents that establish their status. As a result, some claims have been denied because claimants had children or had been in a heterosexual relationship – which in the view of the adjudicator rendered their claim as lacking credibility. Some of these decisions have later been overturned upon appeal. Particular problems are posed for bisexual and trans asylum seekers, and those who do not easily fit into LGBT definitions.
Other changes, not directly related to Bill C-31, also reflect this neoliberal shift. As mentioned previously, an important part of refugee work is contacting and procuring legal advice and lawyers, a crucial service for those who know little about the refugee determination process. Programmes, such as Legal Aid Ontario, which assist in contracting the services of lawyers, have been severely undermined (Envisioning, 2014, p. 23). But legal representation is often necessary, and most asylum seekers have no financial resources. These factors make refugee work much more difficult and the chances of rejection higher.
In 2012, cuts to health coverage for asylum seekers removed vision, dental and medication coverage for all refugees – aside from the few who receive state sponsorship for resettlement. Claimants in the DCO category now had no access to this funding at all (ibid., p. 29). Refugees who are largely from racialised communities already suffer from problems in accessing healthcare. These cuts fit into a neoliberal logic of reducing social expenditure and privatising social services. Following major protests from refugee groups and healthcare providers, courts reversed these decisions and in February 2016 the Liberal government restored this funding.
The significant shift to downloading support for refugees on to community organisations and non-state agencies, including churches, has already been noted above. This approach is also informed by the neoliberal imperative to reduce state expenditures for social services and to involve community groups and agencies in doing and funding this work, including that of regulating asylum seekers.
These changes have pushed Canadian immigration and refugee policies further in a neoliberal direction. Although some of the more extreme aspects of this transformation may be addressed by the Liberal government, the basic neoliberal orientation of Canadian immigration and refugee policies continues and should be challenged.
Some conclusions: No One Is Illegal while addressing sexual/gender oppression
In critically exploring the contradiction between formal LGBT rights for asylum seekers and their denial in practice, this chapter has aimed to provide a social and historical contextualisation for this process, and to suggest ways of organising to improve the situations for queer asylum seekers and all refugees and migrants. An approach is needed that does not focus solely on narrow LGBT issues. This investigation has combined Envisioning insights with NOII activism and research in order to deal with the specificity of sexual and gender oppression while also viewing it through the mutual construction of class, race and state relations. In particular, following the 2015 Envisioning report, there needs to be a focus on challenging racism. This analysis also takes up Holloway’s formulation (2005, 2016) of acting simultaneously within, against and beyond ruling relations. It is important to operate within existing regulations to use and expand them, to organise against their limitations and to move beyond their restrictions. Here, the NOII approach usefully combines direct action support work against deportations with campaigns against specific regulations in the context of an overall perspective that looks beyond border regimes to status for all. To organise simply within these regulations would mean no major challenge to racism, neoliberalism and border regimes more generally could be mounted.
In struggling within these regulations, we can argue for better training for people in the IRB on LGBT and other concerns, and for more time for people to do their refugee work and to collect the documents and ‘evidence’ they need.23 We can fight to expand the right of people to appeal decisions made against them. As Gitari (2014) suggested, we can argue that any country with laws criminalising same-gender sex like Kenya cannot be considered ‘safe’. In this sense, as Envisioning (2015) suggests, the weight in hearings needs to be far less on proving one is LGBT and much more on demonstrating persecution. At the same time, there are major problems with how ‘persecution’ has been defined in refugee determinations. Although these important changes will have consequences in many people’s lives, they only scratch the surface of what is needed and will do nothing for those denied status or those who cannot get to Canada.
In struggling against these regulations, we need to argue for the repeal of Bill C-31. In particular, the DFN and DCO categories need to be abolished so that how people arrive and what countries they come from do not invalidate or weaken their claims. The Safe Third Country Agreement with the US should be abolished to allow refugee claimants to apply safely for refugee status when they cross into Canada from the US (Canadian Council for Refugees, 2017a). Restrictive immigration and refugee policies should be eliminated so that more people can be accepted as refugees. But getting rid of these barriers and restrictions does not in itself provide for access and status for all who need it.
The important changes resulting from organising within and against these regulations would still leave many people with denied applications – or unable to get to Canada – living without status. Racialisation and stigmatisation of refugees would still continue. This is where the NOII perspective helps us to push beyond the limitations of border regimes to put them in question. It includes addressing the survival work of asylum seekers by building alliances with others fighting poverty and striving for better social assistance and supports, housing, healthcare and employment opportunities, and against racism. This NOII-influenced approach includes a focus on surveillance, detention, deportation and normalising regimes, while rejecting the distinction between ‘deserving/undeserving’ refugees and migrants. It means not focusing only on asylum seekers who have ‘good citizenship’ characteristics but also rejecting the notion of the citizen as the only person who should be accorded rights.
One important line of action that grows out of this perspective is the Sanctuary City movement (NOII – Toronto, 2015; Nail et al., 2010), which allows access to services irrespective of status and declares areas of social life off-limits to Canada Border Services Agency officers. This can be expanded along provincial and other lines as well, an approach that begins to erode the distinction between those with status and those without. At the same time, in some municipalities that have declared themselves to be Sanctuary Cities there is still cooperation with Canadian Border Services, and refugees/asylum seekers still have problems accessing services, which undermines any sanctuary that these cities are providing. Real sanctuary cities therefore need to be established (Goffin, 2017). This can be a useful way of pushing towards a status-for-all perspective and needs to be actively taken up in queer communities. For instance, queer community spaces should be a no-go area for Canadian Border Service agents.
Within queer communities and movements, this means that activists need to reject homonationalist influences. We need to reject Canada’s ‘posturing’ that it is civilised in terms of LGBT rights, including refugee rights. We need to support refugees and migrants coming into Canada without thinking we are ‘saving’ them from their ‘bad’ cultures. Instead, we need to respect and support people’s agency and the refugee work they do. We need to refuse to impose on people the categories of the West and the North.
We need queer refugee, migrant and anti-border struggles that are firmly rooted in anti-colonial, anti-racist, anti-capitalist and feminist perspectives which challenge the border policies of Canada and other nation states. This is what is required to meet the needs of queer migrants and asylum seekers and all those forced to move to try to better their lives. Can we dream of – and organise for – a queer offensive against racism and border regimes?
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1 I write this on indigenous land, and all work on refugee rights must recognise this. Everyone aside from the original indigenous peoples has come from somewhere else, and this is further complicated by histories of slavery and indentured servitude; even among indigenous people there has been migration. In doing this work and research it is important to develop a firm anti-colonial and anti-racist approach that ‘troubles’ Canadian borders and immigration/refugee/citizenship policies (Walia, 2013). I thank Cynthia Wright for the stimulating conversations and suggestions informing this chapter.
2 Throughout this chapter I use ‘queer’ and ‘LGBT’ (lesbian, gay, bisexual, transgender) interchangeably to refer to people engaged in diverse erotic and gendered practices. At the same time I stress that these are not adequate terms, are Western-and Northern-derived and cannot even fully make sense of sexual/gender experiences in the West and North. Even though ‘queer’ is often an attempt to capture a wider range of sexual and gender encounters, it is still coded in a Western fashion. The diverse sex and gender practices in which people engage in many parts of the Global South cannot be understood through these classifications. Many indigenous erotic and gendered practices in these societies cannot be understood simply through hetero/homo or male/female binaries (Massad, 2007; Drucker, 2000; 2015).
3 For instance, Kenya has an approximate wait time of over four years, and no country has a wait time of less than one year (Envisioning, 2014, p. 26). This creates highly unsafe situations for LGBT asylum seekers.
4 This chapter was initially written prior to the Liberal government taking office in Nov. 2015 and, although it has been updated, it cannot fully address the limited changes this government is bringing about in immigration and refugee policies. On some of these changes and proposals, see Nerenberg (2016). Also see the frequent updates on the Canadian Council for Refugees site at: http://ccrweb.ca/en/home (accessed 6 Mar. 2018).
5 On the Marxist use of social form, see Holloway (2005) and Corrigan and Sayer (1985). Moving beyond the ‘natural’ appearance of these forms, this stresses that they are always historical and social in character and can therefore be socially transformed.
6 It is unfortunate in this regard that Envisioning could not, in its interviews and focus groups, gather information from those denied status.
7 This is in the Guiding Principles document which all Envisioning research teams adopted (Envisioning, 2012).
8 For instance, see the framing in Caryle-Gordge (2012).
9 Sometimes this can also be that others perceive a person to be LGBT, and sometimes this can also be applied for on multiple grounds.
10 This approach was influenced by the feminist domestic labour debates and the theoretical work leading up to Wages for Housework that focused on the centrality of unpaid domestic and reproductive labour in the production of capitalist social relations.
11 On the difficulties of finding affordable and adequate housing for Syrian refugees, see Cross (2016).
12 The Liberal government taking in close to 40,000 Syrian refugees, mostly from the camps in Lebanon and Jordan, is largely beyond the scope of this chapter. The proposal was based on past practices of family reunification, with a focus on women and children. Initial proposals would have entirely excluded ‘single’ men on ‘security’ grounds, which could mean the exclusion of many ‘men’ involved in gender and sexual diversity. In response to criticism, the government clarified that single ‘gay men’ could still apply.
13 Despite major insights, Drucker’s (2015) work is limited in arguing largely that ‘economic’ regimes of capital accumulation determine forms of sexual formation and in often obscuring the importance of class and social struggles (including gender and sexual) in bringing about these sexual formations and their transformation. Also see my review essay (2017b) on this book.
14 Includes all transgender, non-binary, and gender non-conforming identities.
15 There remains a continuing need to question and challenge ‘the family’ in immigration policy. It is always important to emphasise that this family is not ‘natural’ but is socially made, in part through immigration policies.
16 Islamophobia has become an organising term describing anti-Muslim mobilisation. At the same time as accepting this term for organising purposes, I question the phobia part of the term, since this can carry with it the individualist and psychological connotations of psychological discourse which obscure how this practice is coordinated through social relation and practices.
17 I use a wider autonomist Marxist analysis of class and class struggle. On this see Kinsman (2005, pp. 41–50), Cleaver (2000) and Dyer-Witheford (1999).
18 On composition of class struggle, see Cleaver (2000) and Dyer-Witheford (1999).
19 On this see Cleaver (2000), Dyer-Witheford (1999) and McNally (2006).
20 For an examination of the relationship between moral conservatives, national forces, neoliberalism and the assault on civil liberties in Africa, see in this volume: Jjuuko and Tabengwa, ch. 2; Jjuuko and Mutesi, ch. 10; Lusimbo and Bryan, ch. 12.
21 See http://laws-lois.justice.gc.ca/eng/Const/page-15.html (accessed 13 Mar. 2018).
22 An act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act. See www.parl.ca/DocumentViewer/en/41-1/bill/C-31/royal-assent (accessed 13 Mar. 2018).
23 In 2017, the IRB in Canada asked agencies serving immigrants, asylum seekers and refugees; various experts in the field; and the Envisioning team and its research partners to give recommendations and feedback on their draft new guidelines on SOGI claims. These guidelines, which addressed a number of our concerns, were released on 1 May 2017 and are available at: www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir09.aspx (accessed 7 May 2018).