Transgender Discrimination in Immigration Law

TRANGENDER DISCRIMINATION IN IMMIGRATION LAW

Until 1990, openly-LGBT immigrants were banned from immigrating to the United States. Currently, there is no law expressly prohibiting transgender people from visiting or immigrating to the United States. Nevertheless, gender identity and presentation often play a significant role in a person's ability to immigrate. Transgender immigrants should be able to obtain identity documents in the "outward, claimed and otherwise documented sex of the applicant."1 Unfortunately, it is often not clear what CIS means by "otherwise documented." Furthermore, CIS has applied this rule unevenly, often (but not always) requiring sex reassignment surgery (SRS) and even failing to correct gender on documents for individuals who have had SRS.2 The following resource is a free guide to changing gender markers on California and federal identity documents developed by the Transgender Law Center: http://transgenderlawcenter.org/pdf/TLC%20ID%20Guide.pdf.

One way that transgender persons can get legal status in the United States is by seeking asylum, claiming that they were harmed or fear harm in their home country.3 Another way that transgender immigrants can get legal status is if they are in a bi-national opposite-sex relationship at the time of marriage, where one partner is a U.S. citizen or permanent resident and the other is not. In such a case, the person's sex, or that of the non-immigrant partner, may affect the ability of the person to immigrate based on a marriage or engagement.

In immigration law, DHS must respect any marriage that is considered valid in the applicant's home country and is not contrary to public policy.4 Until recently, some transgender individuals were asked to provide immigration officials with proof of having undergone a sex reassignment surgery to be eligible for marriage benefits. In Matter of Lovo-Lara,5 a 2005 decision, the Board of Immigration Appeals (BIA) addressed Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, which defines marriage as only between one man and one woman.6 The BIA held that DOMA does not prohibit recognition of a marriage involving a “postoperative transsexual,” where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.7 In other words, there is no specific federal policy against marriages where one spouse is a “postoperative transsexual,” so long as it was legal when and where the marriage took place, it should be valid for a marriage-based "green card" application. More recently, the USCIS released a policy memo that explicitly stated that proof of sex reassignment surgery is not required for determining the validity of a marriage involving a transgender person as long as they can provide proof of “appropriate clinical treatment.”8 Unfortunately, in spite of the good law on the books in this area, transgender individuals continue to have difficulties enforcing their rights, and CIS officials continue to misapply the law.

One issue that might arise when transgender people seek to immigrate to the U.S. is the classification of that person's name or gender on his or her immigration papers. Official immigration papers may include a passport from the home country, a visa permitting the person to enter and remain in the U.S., a permanent resident card, or naturalization papers. If a person wishes to change their name after they have already obtained a permanent resident card or naturalization papers, they must provide the government with a court-ordered name change. If a person changed their name prior to receiving immigration papers, they can request that their correct, changed name be used at the time of issuance.9 The Department of State recently issued guidelines for correcting the gender marker on U.S. passports: if all of the required identity documents have the same gender, no medical documentation is required but if there is a discrepancy in the gender marker on required documents, then the applicant must submit a certification from a treating physician.10

Non-citizens are legally obligated to carry their green card or other immigration papers with them. Presenting false or expired papers to the DHS may lead to deportation or criminal prosecution. An unexpired green card, I-94 (Arrival-Departure Record), Employment Authorization Card, Border Crossing Card or other papers that prove legal status generally satisfy this requirement. If people do not carry these documents with them, they could be charged with a crime. It is smart to keep copies with a trusted friend or family member who can easily fax the documents if need be.


  1. USCIS Interoffice Memorandum from William R. Yates Re: Adjudication of Petitions and Applications Filed by or on Behalf of, or Document Requests by, Transsexual Individuals (Apr. 16, 2004). 

  2. Transgender Issues. Immigration Equality, Last visited August 1, 2012. 

  3. To read actual case summaries of LGBT individuals seeking asylum, see Immigration Case Docket, National Center for Lesbian Rights, Last visited August 1, 2012. 

  4. Matter of Lwin, 16 I. & N. Dec. 1 (BIA 1976); Matter of Darwish, 14 I. & N. 307 (BIA 1973). 

  5. Matter of Lovo-Lara, 23 I. & N. Dec. 746 (BIA 2005). 

  6. For more information, see Rachel Duffy Lorenz, Transgender Immigration: Legal Same-Sex Marriages and Their Implications for the Defense of Marriage Act, 53 UCLA L. Rev. 523 (2005). 

  7. The language of “postoperative transsexual” is taken from the text of the case and is not the language choice of the National Lawyers Guild. For an introductory list of related terms, see Gender Variance: A Primer, Gender Education & Advocacy, Inc., Last visited August 1, 2012. 

  8. USCIS Policy Memorandum Re: Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (Apr. 10, 2012). 

  9. Trans Realities: A Legal Needs Assessment of San Francisco’s Transgender Communities, National Center for Lesbian Rights and the Transgender Law Center, 2003, Last visited August 1, 2012. 

  10. Identity Documents, Immigration Equality, Last visited August 1, 2012.