Transgender Discrimination in Immigration Law

TRANGENDER DISCRIMINATION IN IMMIGRATION LAW

Until 1990, openly-LGBT immigrants were banned from immigrating to the United States.1 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."2 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.3 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.4

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.5

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/issues/id/id-please.


  1. LGBT Immigration Highlights, Out 4 Immigration, http://www.out4immigration.org/history.html, Last visited May 28, 2014. 

  2. 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). 

  3. Transgender Issues. Immigration Equality, http://www.immigrationequality.org/issues/transgender/, Last visited May 28, 2014. 

  4. Trans Realities: A Legal Needs Assessment of San Francisco’s Transgender Communities, National Center for Lesbian Rights and the Transgender Law Center, 2003, http://www.nclrights.org/wp-content/uploads/2013/07/transrealities0803.pdf, Last visited May 28, 2014. 

  5. Identity Documents, Immigration Equality, http://www.immigrationequality.org/issues/transgender/identity-documents/, Last visited May 28, 2014.