Written by Raoul David Wieland, Barrister-at-Law at Gerami Law PC.
In Gorzsas v Canada (Citizenship and Immigration), 2009 FC 458, the Federal Court (‘Court’) emphasized that a reasonable assessment of the risk of persecution that a refugee claimant would face if returned to their country of origin requires a member of the Immigration and Refugee Board of Canada (‘IRB’) to adopt an intersectional lens and pay attention to the cumulative harmful impacts of discrimination. The IRB has since elaborated on this approach in its Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (‘Chairperson’s Guideline 9’) and Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (‘Chairperson’s Guideline 4’).
Intersectionality is a useful approach to unpacking the complex realities of individual refugee claimants based on their intersecting, multiple, and fluid identities. This article will revisit the decision in Gorzsas and address where the Court and the IRB fell short in their use of the intersectionality framework with suggestions for improvement.
The Court in Gorzsas and the IRB in Chairperson’s Guideline 9 adopt what critics like Carol Aylward and Sherene Razack have called an “additive analysis” of discrimination that misconstrues the harm experienced by individuals. This is problematic since an accurate and nuanced analysis of discrimination by board members is foundational to their determination of whether the discrimination faced by an individual rises to the level of persecution necessary to ground a refugee protection claim.
In Canada, to be considered a convention refugee under section 96 of the Immigration and Refugee Protection Act (‘IRPA’), a claimant must demonstrate that they hold a well-founded fear of being persecuted on the basis of their race, religion, nationality, membership in a particular social group, or because of their political opinion.
While single acts of discrimination rarely rise to the level of persecution required by section 96, it is well established that “a series of actions which can be characterized as discriminatory, if not persecutory” might “if taken together … constitute a valid basis for a well-founded fear of persecution” [Bledy v Canada (Citizenship and Immigration), 2011 FC 210, (para 27)]. The right question that an IRB member should ask is therefore: “Does the discrimination suffered by these claimants amount to persecution when considered singularly or cumulatively?” [Bledy v Canada (Citizenship and Immigration), 2011 FC 210, (para 31)].
In Gorzsas, the Court faulted the member for not adopting this cumulative approach to discrimination, stating that “the officer’s reasons fail to address the ‘intersectionalities of the evidence and failed to treat the applicant as a sum of his parts’. The officer … failed to truly gauge the cumulative effects of the discrimination faced by the applicant” (para 36). According to the Federal Court, rather than asking what risks “a gay man, then a HIV positive person, and then a Roma person” would face, the member should have canvassed what risks “a gay, HIV positive Roma returning to Hungary” would face (para 36).
While at first brush this approach seems to allow IRB members or the Court to accurately describe the social reality of individuals experiencing discrimination and harassment, it misconstrues the meaning of intersectionality, and by doing so, perpetuates a view that some identities are the norm, an error which ultimately fails to capture the distinct nature of the harm experienced by refugee claimants.
An important distinction that the Federal Court failed to make is between what Carol Aylward calls “intersectional discrimination” and “compound discrimination.”
Intersectional discrimination arises, according to Aylward, when various forms of discrimination, such as race and gender discrimination, combine to “produce something unique and distinct from any one form of discrimination standing alone…”. The discrimination experienced, for instance, by women of color is therefore distinct (i.e., only experienced by women of color) as opposed to ‘similar but worse’ than the discrimination experienced by white women.
A cumulative or compound approach to discrimination, in comparison, frames discrimination as experiences that intensify or become an “added burden” the more marginalized identities a person has. For instance, it assumes that race worsens sex discrimination for women of colour as opposed to distinct. Implicitly, this approach considers the discrimination experienced by a white, heterosexual, able-bodied, middle-class woman as the norm and imagines that being a person of color and/or being a lesbian makes the burden of discrimination cumulatively more intense.
As Sherene Razack has pointed out, mainstream feminist theorists have often placed white women at the centre of the analysis and “added on layers of oppression by grafting racism to sexism, as understood by white women” [emphasis mine]. The implication is that the nature of the discrimination experienced by women of color ends up being explained through the lens of a white woman and may therefore fail to capture important distinctions brought about by, for instance, the legacy of slavery in the United States and Canada.
This is what the Federal Court effectively did in Gorzsas when it suggested that being HIV-positive, being gay, and being a Roma increased the discriminatory, cumulative burden on the applicant to a degree that reached the threshold of persecution. The Court cited Rodriguez Diaz v. Canada (Minister of Citizenship and Immigration), 2008 FC 1243, for instance, to note that “because of his diagnosis and because he was gay” discrimination is likely to have much more devastating consequences for the applicant, as compared to the discrimination experienced by a heterosexual, HIV-positive man (para 39).
From an intersectional discrimination perspective, however, his experience as a gay, HIV-positive, Roma man would be unique and distinct based on the stereotyping and historical treatment of gay, HIV-positive, Roma men in Hungary, just as society’s historical treatment of black women makes their experiences distinct from the experiences of white women.
While the recently updated Chairperson’s Guideline 4 does move towards instructing tribunal members to assess how “multiple identity factors … may interact to create distinct” forms of discrimination, it continues to emphasize compound discrimination, stating, for instance, that “an intersectional approach would consider how a lesbian woman belonging to an ethnic or racial minority within her country may suffer compounded discrimination based on the interaction of her gender, sexual orientation, and ethnicity or race.”
In framing discrimination as intersectional and therefore distinct rather than compounded, decision-makers can start inquiring into the social reality of the multiple forms of oppression that an applicant experiences based, for instance, on gender, ethnicity, disability, and sexuality, rather than treating them as merely “add-ons” to an identity whose experience is implicitly viewed as the norm.
Doing so can help nuance a member’s understanding of the distinct experiences of discrimination that, for instance, a gay, HIV-positive, Roma man faces. One starts by inquiring what historical and social foundations exist for the stereotypical and discriminatory attitudes and actions that make his situation distinct, rather than beginning by asking how the general, normative person in Hungary is being treated, and then adding, in a piecemeal fashion, various dimensions of discrimination to determine whether a certain threshold of persecution is reached.
While it is not possible to put oneself into the position of a particular applicant and to fully understand how devastating the discriminatory experiences were or are for them based on their unique intersectional identity, adopting an intersectional discrimination lens can help decision-makers to at least be aware of their blind-spots and taken for granted assumptions. This ultimately can lead to more accurate and reasonable assessments about the prospective risks that refugee applicants face if returned to their countries of origin, and may also help with assessing credibility, or the relevance of supporting evidence.
