The Status Of Transsexuals Under US Immigration Law
The United States Citizenship and Immigration Services (CIS) issued a memo on April 16, 2004, concerning the status of transsexual individuals under immigration law.1 The memo indicates that CIS shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claim to have changed their sex.
The memo also indicates that in cases where the gender of the individual is not pertinent to the underlying application or petition, CIS will consider the merits of the application without regard to the applicant’s transsexuality. Thus, any documentation (whether original or replacement) issued as a result of the adjudication shall reflect the outward, claimed documented sex of the applicant at the time of CIS document issuance.
The memo acknowledges that no federal statute or regulation addresses specifically the question of whether someone born a man or a woman can surgically change his or her sex. According to the memo, “Transsexualism is a condition in which a person feels persistently uncomfortable about his or her anatomical sex, and often seeks medical treatment, including hormonal therapy and sex reassignment surgery.”
The memo affirms current CIS policy disallowing recognition of a marriage between two persons born of the same sex, where one or both subsequently changed their sex.
On the other hand, the memo acknowledges that almost one-half of the states in this country authorizes the issuance of new birth certificates to individuals who have undergone sex reassignment surgery, as long as they present appropriate medical documentation. These same states also permit the issuance of marriage licenses for couples where one member presents a newly issued birth certificate reflecting his or her name and/or sex reassignment.
Regardless of whether states recognize such marriages, the memo relies on Adams v.
Howerton, 673 F.2d 1036 (9th Cir. 1981), in holding that a marriage under immigration law is a matter of Federal, not State or foreign law. To further support the agency’s position, the memo also refers to the 1996 Defense of Marriage Act (DOMA), which bans any federal recognition of same-sex marriages for immigration purposes and defines marriage as an institution involving a “man” and a “woman.”
The memo indicates that deferring state practices, regarding the recognition of change of an individual’s gender and subsequent marriage, have often caused confusion and inconsistent adjudications within the CIS with regards to the adjudication of transsexual applicants for immigration benefits.
Thus, the memo articulates the following policy guidance:
Spousal and Fiancé(e) petitions
The CIS shall not recognize a marriage or intended marriage between two individuals where one or both of the parties claim to be transsexuals regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so. Thus, the memo prohibits the CIS from approving a Form I-130, Petition for Alien Relative, or Form I-129F, Petition for Alien Fiancé(e), if one or both parties to the petition was born a sex other than what they claim to be at the time of filing. This policy would also prevent other applicants from gaining immigration benefits that is granted based on a marital relationship, such as an individual who claims H-4 status based on a marriage to the beneficiary of an H-1B petition.
Other Petitions or Applications
On the other hand, if the gender of the individual is not pertinent to the application, the memo instructs CIS personnel to consider the merits of the application without regard to the applicant’s transsexuality. Thus, for example, an alien who has been sponsored under an employment-based immigrant category shall be issued a green card (Form I-551) reflecting the claimed sex of the applicant at the time of the issuance. This applicant should provide appropriate medical and other documentation to establish his or her new claimed gender and legal name. Similarly, in the case of a green card holder who has changed his or her sex and seeks to replace the green card, the CIS shall issue the replacement card reflecting the new sex and legal name change. The applicant seeking such replacement must submit the birth certificate issued at birth, the newly issued birth certificate reflecting the name and/or claimed sex reassignment, and the court order granting the legal name change. It is no longer necessary for CIS to require a federal court order directing the agency to changes its records where an individual indicates or claims a different gender from which he or she was born with.
The memo acknowledges the confusion in this area, but further confuses the issue by taking with one hand and giving with the other. It expressly prohibits the granting of immigration benefits through marriage where one or both parties have changed their sex. On the other hand, the new policy allows a person to reflect a new gender on an immigration document when gender is not pertinent to the underlying application or petition.
Thus, a green card holder, or a person about to get a green card through an employment-based immigration visa petition, is allowed to reflect his or her new gender on the immigration document. But, if this person wanted to marry a foreign national and confer a benefit on that spouse, the policy set forth in this memo would not allow this individual who has changed his/her sex to do so.
Let’s take this logic further to show how contradictory the results of such a policy can be. Suppose a person born a woman goes through a sex reassignment surgery and becomes a man, and the state recognizes this gender change and provide a new birth certificate. If this individual were being sponsored under the employment-based immigrant category, CIS would have no problem in issuing a green card to this individual recognizing him as a man. If this man subsequently wishes to marry a foreign national woman and the state allows him to do so, CIS will not recognize such a marriage for purposes of conferring an immigration benefit to his foreign national spouse. CIS, for this purpose, would presumably still consider this individual to be a woman. Suppose this man (who was originally a woman and is still considered a woman by the CIS) wishes to marry another man, and this marriage takes place in Massachusetts that recognizes same-sex marriages. The CIS has previously articulated that it will not recognize same-sex marriage for immigration purposes; although in this example, the CIS should technically recognize the marriage because it considers this individual still a woman and not a man!
Although DOMA bars any recognition of same-sex marriage, it does not address the issue of whether a marriage between two parties, where one or both have undergone sex change surgery, should be recognized for federal law purposes. Thus, it is disingenuous for the CIS to rely on the DOMA in the context of a marriage that may no longer be a same-sex marriage especially when a state has issued a new birth certificate to this individual and has also allowed him/her to marry. The memo interestingly reveals that at least one-half states of this country permit the issuance of marriage licenses for couples where one member presents a newly issued birth certificate reflecting his or her name and gender change. The memo further states that the “legislative history of the DOMA also clearly supports a traditional view of marriage, especially one that ties its basic character and importance to children, even though the marriage laws do not require that a couple be physically or mentally ready and able to procreate [citation omitted].”
But this is an extremely simplistic view of transsexuality. Experts generally agree that sex is not just identified by external genitalia manifested at birth, but that there are at least seven variables that interact to determine the ultimate sex of an individual, to wit: (1) Chromosomes (XX female, XY male); (2) Gonads (ovaries or testes); (3) Hormonal secretions (androgens for males or estrogens for females); (4) Internal reproductive organs (uterus or prostate); (5) External genitalia; (6) Secondary sexual characteristics; and (7) Self-identity, [citation omitted].
Maffei, v. Kolaeton Industry, Inc.,626 N.Y.S. 2d 391 (S.Ct. of NY, March 14, 1995) (discrimination based on sexual orientation extends to transsexual under NY City antidiscrimination law).
CIS’ reliance of Adams v. Howerton, supra, a 1981 decision, is also inappropriate. In that case, the Court of Appeals of the Ninth Circuit dealt with a same-sex marriage and not a marriage between parties where one had undergone a sex change. It was also not clear in
Adams v. Howerton whether Colorado state law recognized same-sex marriages and it pre-dates the current trend involving the increased legal recognition of same-sex marriages or civil unions. The court, however, bypassed this issue by reasoning that even if Colorado recognized a same-sex marriage, the interpretation of the immigration statute suggests that the reference to spouse was not intended to include a person of the same-sex. However, a marriage between two people, one of whom has undergone a sex change cannot be regarded as a marriage between two people of the same-sex.
The Immigration and Nationality Act (INA) does not define “spouse.” Instead INA § 101(a)(35) restricts this category by stating that any marriage ceremony where the contracting parties are not physically present in the presence of each other shall not be recognized, unless the marriage shall have been consummated. Historically, the validity of a marriage is judged by the place where it is celebrated.
See e.g . Matter of Ceballos, 16 I. & N. Dec. 765 (BIA 1979) (Columbian religious marriage has the same validity as civil marriage);
Matter of Mujahid, 15 I. & N. Dec. 546 (BIA 1976) (no wedding ceremony or consummation required in Egyptian marriage, found to be valid if contracted by competent parties, in presence of two witnesses, followed by adequate publication). But marriages that are counter to public policy are generally not valid for immigration purposes.
Matter of Darwish, 14 I. & N. Dec. 623 (BIA 1973); Matter of H-, 9 I. & N. Dec. 640 (BIA 1962) (polygamous marriages not recognized);
Matter of W-, 4 I. & N. Dec. 209 (BIA 1950) (proxy marriage not recognized).
In the case of a marriage, where one or both parties are transsexuals, CIS ought to recognize the marriage if it is valid under the law of the state where it is celebrated. For the CIS to argue that it is counter to public policy would be inappropriate if one-half the states of this country recognize one’s change in gender, issue new birth certificates and allow that person to marry. Moreover, if CIS recognizes the new identity of a person when gender is not pertinent to an immigration petition or application, it should go all the way and also recognize a transsexual marriage.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555. [Ed. changed 8/31/2004 ]
1 William R. Yates, Associate Director for Operations, “Adjudication of Petitions and Applications Filed by or on Behalf of, or Document Requests by, Transexual Individuals,” HQOPRD 70/6 (April 16, 2004).
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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