Chairperson Guideline 9 — Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) — was issued in 2017 and replaced the earlier Guideline 9 on sexual orientation and gender identity. It provides a comprehensive framework for assessing refugee and immigration claims involving LGBTQ+ and intersex persons, covering both the substantive legal framework and the procedural accommodations required in these proceedings.

SOGIESC claims present unique challenges: the harm feared often stems from private actors (family members, community) as well as state authorities; identity is inherently personal and difficult to prove; and credibility assessments must account for the impact of shame, secrecy, and fear on how claimants present their claims.

• IRPA s 96 — "membership in a particular social group" ground: LGBTQ+ persons and intersex persons are recognised as members of particular social groups for Convention refugee purposes
• IRPA s 96 — "political opinion" ground: may apply where the person's SOGIESC identity is perceived as a political challenge to the state or social order
• IRPA s 97 — risk to life or cruel and unusual treatment, including violence by state or non-state actors
• IRPA s 159(1)(h) — Chairperson's authority to issue guidelines

Particular social group analysis

The Guideline affirms that persons with SOGIESC characteristics constitute a "particular social group" for Convention purposes. The protected characteristic is the person's sexual orientation, gender identity or expression, or sex characteristics — these are innate or fundamental characteristics that should not require a person to change or conceal them.

Persons may be persecuted for who they are (their identity) or for what they do or express. The Guideline recognises both aspects as grounding Convention protection.

Discretion and concealment

The Guideline rejects the "discretion" reasoning — a member cannot deny a claim on the basis that the claimant could avoid persecution by concealing their SOGIESC identity. A person should not be required to hide a fundamental characteristic of their identity to avoid persecution. This principle follows from the Supreme Court of Canada's analysis in Canada (Attorney General) v Ward and is fundamental to the assessment of SOGIESC claims.

Credibility in SOGIESC claims

The Guideline provides detailed guidance on credibility in SOGIESC claims. Members should:

• Not impose Western standards or stereotypes about how LGBTQ+ identity is expressed — a person from a country where same-sex relationships are criminalised may never have been able to openly identify or express their identity
• Understand that late disclosure of SOGIESC identity may result from shame, fear of not being believed, fear of family, or other genuine reasons — not dishonesty
• Not require claimants to prove their identity through a checklist of stereotypical "LGBTQ+ behaviours" — identity is personal and individual
• Not treat a lack of relationships or sexual activity as undermining the claim — many SOGIESC claimants have never been in a relationship or have been in a heterosexual relationship due to social pressure

Procedural accommodations

The Guideline requires members to offer and provide appropriate accommodations for SOGIESC claimants, including:

• Cleared hearing room (no observers)
• Gender-appropriate interpreter
• Support person
• Videoconference testimony where in-person appearance would be distressing

Accommodations should be offered proactively — claimants may be embarrassed to ask. Counsel should request accommodations in advance of the hearing.

SOGIESC claims are among the most complex and sensitive refugee claims. Country conditions vary enormously — some countries have legal protections for LGBTQ+ persons; others criminalise same-sex relationships with severe penalties. The IRB's National Documentation Packages for each country include relevant SOGIESC-specific documentation where available.

The Guideline is available at the IRB guidelines page. Organisations such as the Rainbow Refugee Association (Vancouver) and The 519 (Toronto) provide specific support and advocacy for SOGIESC claimants in Canada.