Double Punishment – Immigration Penality and Migrant Trans Women Who Sell Sex

Nora Butler Burke

what the chapter does

examines how migrant trans women who sell sex in Montreal experience double punishment through the combined enforcement of criminal and immigration laws.

Burke argues that migrant trans women face two interconnected systems of punishment:

• Criminal justice system: They experience police surveillance, arrests, criminal charges, imprisonment, and discrimination.

• Immigration system: Their criminal records can threaten their immigration status, resulting in detention, deportation orders, fines, restrictive conditions, and loss of access to essential services.

central argument

criminalization does not end with arrest or imprisonment. For migrant trans women, criminal charges can create additional immigration consequences that make their lives even more unstable.

Immigration penality

the system through which immigration laws, policies, and enforcement practices punish and control non-citizens.

According to sociologist Anna Pratt, immigration penality involves authorities and institutions that:

• Control national borders.

• Monitor and police non-citizens.

• Identify individuals considered dangerous or undesirable.

• Restrict immigration status.

• Detain and deport individuals.

The two most extreme forms of immigration penality are:

• Detention: Holding someone in immigration custody.

• Deportation: Forcibly removing someone from the country.

immigration penality also includes less obvious forms of punishment, such as:

• Financial penalties and fines.

• Probation-like restrictions on everyday activities.

• Mandatory rehabilitation programs.

• Immigration hearings.

• Loss or denial of permanent residency or protected status.

Important legal context:

Canada's Immigration and Refugee Protection Act (IRPA), introduced in 2001, established serious criminality as grounds for declaring non-citizens inadmissible to Canada.

For permanent residents, serious criminality can include:

• A criminal conviction for an offence punishable by a maximum prison sentence of at least 10 years.

• A criminal conviction resulting in a prison sentence of six months or more.

Why Migrant Trans Women Are Particularly Vulnerable

• transphobia

• racism

• economic insecurity

• housing instability

• health care barriers

Bars and cabarets in Montreal also provided important social spaces where women could:

• Meet clients and earn income.

• Build friendships and support networks.

• Access hormones.

• Share information about undercover police officers.

• Provide emotional support to one another.

The Montreal police department played a significant role in policing trans sex workers.

Police officers sometimes posed as clients to arrest women for prostitution-related offences.

Women described experiencing:

• Racist and transphobic comments from police.

• Threats of deportation.

• Constant surveillance.

Criminal charges went beyond prostitution-related offences.

Women were also charged with:

• Loitering.

• Violating zoning restrictions.

• Drug-related offences.

• Assault.

Lack of adequate legal representation

• Many women lacked effective legal representation and were encouraged to plead guilty, even when they believed they were innocent.

Immigration Penality in Everyday Life

Women often discovered the immigration consequences of their criminal records when:

• Applying for permanent residency or citizenship.

• Making refugee claims.

• Being released from prison.

The chapter highlights how criminal and immigration enforcement agencies sometimes worked together.

• For example, police provided immigration authorities with information about a woman's identity, appearance, and whereabouts.

• This demonstrates that police surveillance could extend beyond criminal law enforcement and become a way of locating migrants for immigration investigations.

Restrictive immigration conditions

• Some women were allowed to remain in Canada temporarily but were subjected to strict conditions.

required to:

• Stop selling sex.

• Find legally recognized employment.

• Return to French-language school.

what do Restrictive immigration conditions demonstrate

how immigration conditions can be unrealistic when they ignore the structural barriers that migrants experience.

Consequences of Immigration Penality

• constant fear

• financial hardship

• social isolation

Conclusion

• migrant trans women who sell sex experience overlapping systems of criminal and immigration punishment.

• Criminal justice enforcement and immigration enforcement are interconnected, meaning that an arrest can create consequences that extend far beyond the original criminal charge.

Criminal inadmissibility

being considered ineligible to enter or remain in Canada because of certain criminal convictions.