Gay, Lesbian, and Transgender Immigration Issues
Gay, lesbian, and transgender clients face unique issues under U.S. immigration law and are subjected to institutionalized discrimination. Unlike heterosexual couples, where a U.S. citizen can petition for a spouse, under federal immigration law, gay and lesbian U.S. citizens cannot petition for a foreign partner, even if they are married to the foreign partner, and even if their marriage is legally recognized under the law of the state or country where the marriage took place.
The U.S. Department of State announced its new policy guidelines regarding gender change in passports and Consular Reports of Birth Abroad. Beginning June 10, 2010, when a passport applicant presents a certification from an attending medical physician that the applicant has undergone appropriate clinical treatment for gender transition, the passport will reflect the new gender. The guidelines include detailed information about what information the certification must include. It is also possible to obtain a limited-validity passport if the physician’s statement shows the applicant is in the process of gender transition. No additional medical records are required. Sexual reassignment surgery is no longer a prerequisite for passport issuance. A Consular Report of Birth Abroad can also be amended with the new gender.
Transgender U.S. citizens face disabilities and unequal treatment under federal immigration law. Even if they have had a gender reassignment surgery and have been able to receive a new birth certificate, current USCIS policy does not recognize change of sex for the purposes of immigration benefits. Recently, however the Board of Immigration Appeals (BIA) ruled favorably on a transgender immigration issue.
In The Matter of Lovo-Lara, the transgender party was the U.S. petitioner, who had been born male. The petitioner had surgery that changed her sex designation completely from male to female and had received a new birth certificate as a female. The immigration service denied the petition filed by the transgender petitioner on behalf of her foreign spouse. The petitioner appealed. The issue before the BIA was whether "a marriage between a postoperative male-to-female transsexual and a male can be the basis for benefits under [the immigration law], where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage valid." In a rare example of progressiveness, the BIA gave a positive answer.
The BIA analyzed what makes one male or a female, disagreeing with the immigration service's position that in determining whether a particular marriage is valid, one must look to the common meanings of the terms “man” and “woman.” The BIA noted that according to medical experts, there are eight criteria that are typically used to determine an individual’s gender. Thus reliance on the sex designation provided on an individual’s original birth certificate was also not an accurate way to determine a person’s gender. "Typically, such a determination is made by the birth attendant. . . However, intersexed individuals may have the normal-appearing external [organs of one gender], but have the chromosomal sex of the opposite gender." Based on its analysis and reference to medical literature, the BIA approved the transgender U.S. citizen's petition on behalf of her foreign spouse. The BIA held that for immigration purposes, it was appropriate to determine an individual’s gender based on the designation appearing on the current birth certificate issued to that person by the State in which he or she was born.
Although gay, lesbian, or transsexual clients face unique legal challenges when they try to apply for family-based immigration benefits, family immigration is not the only way of immigrating to the United States. Where sexual orientation or gender are not pertinent to the underlying petition or application, USCIS is required to adjudicate the petition or application on the merits, without regard to any sexual orientation issues or gender reassignment. If you are a gay, lesbian, or a transsexual person and would like to live with your loved one in the United States, contact our office for help. We will review the options available to you and your partner or spouse and will assist you in obtaining a proper status to live with your loved one in the United States.
Resources
USCIS Memorandum on Adjudication of Petitions or Applications of Transsexual Individuals
Matter of Lovo-Lara
The U.S. Department of State announced its new policy guidelines regarding gender change in passports and Consular Reports of Birth Abroad. Beginning June 10, 2010, when a passport applicant presents a certification from an attending medical physician that the applicant has undergone appropriate clinical treatment for gender transition, the passport will reflect the new gender. The guidelines include detailed information about what information the certification must include. It is also possible to obtain a limited-validity passport if the physician’s statement shows the applicant is in the process of gender transition. No additional medical records are required. Sexual reassignment surgery is no longer a prerequisite for passport issuance. A Consular Report of Birth Abroad can also be amended with the new gender.
Transgender U.S. citizens face disabilities and unequal treatment under federal immigration law. Even if they have had a gender reassignment surgery and have been able to receive a new birth certificate, current USCIS policy does not recognize change of sex for the purposes of immigration benefits. Recently, however the Board of Immigration Appeals (BIA) ruled favorably on a transgender immigration issue.
In The Matter of Lovo-Lara, the transgender party was the U.S. petitioner, who had been born male. The petitioner had surgery that changed her sex designation completely from male to female and had received a new birth certificate as a female. The immigration service denied the petition filed by the transgender petitioner on behalf of her foreign spouse. The petitioner appealed. The issue before the BIA was whether "a marriage between a postoperative male-to-female transsexual and a male can be the basis for benefits under [the immigration law], where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage valid." In a rare example of progressiveness, the BIA gave a positive answer.
The BIA analyzed what makes one male or a female, disagreeing with the immigration service's position that in determining whether a particular marriage is valid, one must look to the common meanings of the terms “man” and “woman.” The BIA noted that according to medical experts, there are eight criteria that are typically used to determine an individual’s gender. Thus reliance on the sex designation provided on an individual’s original birth certificate was also not an accurate way to determine a person’s gender. "Typically, such a determination is made by the birth attendant. . . However, intersexed individuals may have the normal-appearing external [organs of one gender], but have the chromosomal sex of the opposite gender." Based on its analysis and reference to medical literature, the BIA approved the transgender U.S. citizen's petition on behalf of her foreign spouse. The BIA held that for immigration purposes, it was appropriate to determine an individual’s gender based on the designation appearing on the current birth certificate issued to that person by the State in which he or she was born.
Although gay, lesbian, or transsexual clients face unique legal challenges when they try to apply for family-based immigration benefits, family immigration is not the only way of immigrating to the United States. Where sexual orientation or gender are not pertinent to the underlying petition or application, USCIS is required to adjudicate the petition or application on the merits, without regard to any sexual orientation issues or gender reassignment. If you are a gay, lesbian, or a transsexual person and would like to live with your loved one in the United States, contact our office for help. We will review the options available to you and your partner or spouse and will assist you in obtaining a proper status to live with your loved one in the United States.
Resources
USCIS Memorandum on Adjudication of Petitions or Applications of Transsexual Individuals
Matter of Lovo-Lara