U.S. Immigration Announces Transgender Policy

Good news! The U.S. Citizenship and Immigration Services finally announced the release of a Policy Memorandum which will provide guidance to all immigration offices around the country on how to process immigration petitions from individuals who are transgender. This is a big deal, because, as in all cases where having accurate and official documentation of one's identity is key to accessing a right or benefit, the fact of the matter is that for transgender people their birth sex may not coincide with the sex or gender of the person they present to the world and this can cause bureaucratic headaches for all concerned.

One specific area where this has been a concern is in the case of married couples where one of the spouses was transgender. Because of the so-called Defense of Marriage Act (DOMA), the federal government can not provide a benefit based on a same-sex marriage. For transgender people, determining what their sex is for purposes of marriage recognition can be legally frustrating and confusing enterprise. The memorandum makes it clear that if a transgender couple has been recognized as a different-sex couple for the purpose of state law, then they will also be considered as such for immigration purposes, thus avoiding any DOMA-related problems.

From the press relase from Immigration Equality:

The revisions update the Adjudicator’s Field Manual, a guide binding all USCIS staff overseeing immigration procedures.

NCTE Policy Counsel Harper Jean Tobin said, “Today’s announcement is another example of the Obama Administration’s long-term commitment to equality. These revisions mean that trans people and their families can obtain accurate identification while maintaining their privacy. It’ll also reduce bureaucratic delays, intrusive questions, and wrongful denials of immigration benefits.”

Significantly, the gender designation change is modeled after the U.S. State Department’s updated passport policy, which does not require sex reassignment surgery. “This Guidance is an important step forward for transgender immigrants and their families,” said Victoria Neilson, legal director for Immigration Equality. “It brings USCIS in line with DOS in its guidance for updating gender markers on identity documents – no longer requiring any specific surgery, but instead allowing a doctor to certify the individual’s gender.”

NCTE has been working with Immigration Equality to advance these urgently needed policies, part of our comprehensive agenda for the fair treatment of transgender immigrants.  Neilson added, “The memo affirms existing law and precedents, and recognizes that if a marriage is considered valid and opposite sex under state law, it is valid for immigration purposes.”

“And while these two revisions aid some trans immigrants and their U.S. citizen spouses, and vice-versa, the revisions only highlight the need to eliminate the discriminatory Defense of Marriage Act,” said Tobin.

You can read the full 7-page Memorandum for yourself below.
U.S. Immigration Trans Policy