Abstract

Excerpted From: Alexandra Caggiano, Transgender Inopportunity and Inequality: Evaluating the Crossroads Between Immigration and Transgender Individuals, 37 Seattle University Law Review 813 (Winter, 2014) (136 Footnotes) (Full Document)

Despite being married to a U.S. citizen, non-citizen transgender individuals and non-citizen spouses married to transgender (trans) U.S. citizens still face deportation today due to current immigration policies. One such example was Ady Oren and her husband, Jack Keegan. Jack, born female, never had reconstructive surgery--which courts generally use as an indicator when deciding whether to grant the petition for visas. The court reviewing the petition reversed his case to allow Jack an opportunity to submit evidence that his birth state recognized his changed gender. Luckily, he was able to obtain medical documentation stating that his transition was complete (and at least in Michigan, that standard was enough) so his petition was granted. But many trans individuals are not so lucky and cannot afford the requisite medical documentation that would allow them to stay in this country.

When forced to return to their home countries, trans individuals are likely to encounter violence from those who perpetuate hate towards transgender and gender non-conforming individuals. Instead of protecting these individuals and preserving the immigrants' marriages, the United States continues to send people back to their native countries solely because those individuals do not fall within the narrowly constructed definition of marriage some states use that is legally recognized by federal courts. Trans individuals receive disparate treatment as a direct result of this discrepancy among states and their respective definitions of marriage. This Comment argues that such inconsistent treatment is unfair and, more importantly, unconstitutional.

Current legal trends suggest that this kind of disparate treatment toward trans individuals should not happen. Although the United States has a history of refusing to recognize trans marriages as lawful, that trend appears to be dying today. In 2004, the United States Citizenship and Immigration Services (CIS) Director for Operations issued a memorandum instructing CIS personnel not to recognize the validity of any marriage or intended marriage between individuals where one or both parties claim to be a transsexual. But shifting away from that exclusive approach, the Board of Immigration Appeals (BIA) made progress in 2005 when it issued the precedential decision In re Lovo-Lara. The LovoLara decision changed the guidelines that CIS officers use, leading them to recognize trans marriages when considering whether to grant an immigrant visa, legal permanent residence, or green card for eligible applicants

Moreover, in February 2011, President Obama directed the Attorney General's office to no longer defend the constitutionality of the Defense of Marriage Act (DOMA), a statute that allowed the federal and state governments to refuse to recognize same-sex marriages. Additionally, recent Supreme Court decisions published on June 26, 2013, also paved the way for recognition of all marriages, regardless of sexuality. As a whole, these decisions illustrate that it is unjust for only some non-citizen applicants who are able to meet stringent state requirements, if any are even offered, to receive immigration benefits.

The Lovo-Lara decision remains important in immigration law because, although the Supreme Court struck down DOMA in United States v. Windsor, the Court left the decision of whether to legalize same-sex marriages to the states. Thus, it is still important to understand the Lovo-Lara court's reasoning, and its direct and indirect implications on certain applicants. In its decision, the Lovo-Lara court cited three main reasons why it determined that a postoperative transsexual's marriage to her partner could be legally recognized under federal law--thereby circumventing the then-existing DOMA. First, the court noted that DOMA did not define the word “spouse” in terms of the sex of the parties. Second, DOMA did not directly address the issue of how to define the sex of a postoperative transsexual or the effect on that individual's subsequent marriage. Third, despite existing case law that raised that question at the time of DOMA's enactment, DOMA only focused on preventing same-sex marriage. Based on those three reasons, the LovoLara court created the following two-part inquiry to determine if the marriage is valid for immigration purposes: First, has the trans individual changed his or her gender in a way that is legally recognized by the government? Second, does the state in which the couple resides recognize such a marriage? If both questions are answered in the affirmative, the Lovo-Lara court determined, the parties may be lawfully recognized as an opposite-sex couple, thereby fulfilling DOMA's section three requirements. But this test highlights the discrepancies that exist in how immigration applicants are treated when a couple with a trans partner applies for an immigrant visa--the couple's future may vary depending on how their resident state interprets “sex.”

The problem, then, is what to make of this precedential ruling. On one hand, the decision does recognize the legal validity of trans marriages if one member has undergone sexual reassignment surgery. However, the requirement imposed by the BIA--that the trans individual undergo surgical procedures to change his or her sex a burden on the large number of trans individuals who are not capable of meeting this requirement, based on factors such as the individual's inability to pay for such a procedure or unwillingness to conform to a court-mandated standard. Although the decision was quite progressive in light of the then-existing DOMA, the Lovo-Lara decision applied the medical model of trans-sexualism to further exclude non-conforming trans individuals from opportunities, such as immigration visas.

Differentiating between individuals who have or have not undergone surgical procedures to alter their identity is an arbitrary and meaningless line in the sand. All trans marriages should be recognized due to the protections afforded by the Constitution's Equal Protection Clause. Not doing so discriminates against those who cannot, or will not, have surgery in order to conform to society's accepted standards of male and female.

Today, because society has advanced its understanding of sexual and gender identity, communities increasingly seek to treat all similarly situated individuals alike, including ensuring that trans individuals receive same and equal treatment. Based on the reasoning found in the Windsor and Lovo-Lara decisions, the CIS wrongly withholds immigration privileges to some trans individuals because of state adopted gender conformity distinctions. This Comment asserts that the BIA should change its requirements to better reflect the trend of U.S. courts and legislatures towards recognizing marriages among all genders. The current Lovo-Lara requirements apply unequally amongst couples with a trans partner and thus should not be upheld. Part II of this Comment provides background for the issue by discussing the medical model--which has largely defined transgender in society--juxtaposed with the concept of self-identity. These two models are important because they provide the backdrop for how trans individuals are treated in the law and in society, and how trans individuals should ideally be treated. Part III critiques arguments surrounding gender identification and notes why such strict classifications should be irrelevant. Part III also evaluates the inequities and inconsistencies that stem from the Lovo-Lara decision; the equal protections afforded by our Constitution; and the recent court of appeals trend that has deemed DOMA unconstitutional altogether. Part IV proposes how to treat trans marriages involving immigrants and how those individuals will be afforded equal opportunities and protections. Part V briefly concludes.

[. . .]

The Lovo-Lara case only furthers discrimination against trans individuals by forcing them to conform with the majority view of gender classification or risk being deported. Trans individuals are more likely to face poverty and discrimination, and these obstacles prevent them from earning an adequate income; therefore, it is unlikely that every trans individual who would like to qualify as being in an opposite sex marriage for immigration status is able to overcome those burdens. Further, as a trans individual, being deported back to his or her native country could mean a death sentence. Recognition of all trans marriages is the only way to treat all trans individuals equally under the language of the Fourteenth Amendment and in accordance with U.S. principles of freedom and opportunity.

J.D. Candidate, Seattle University School of Law, 2014; B.A. Law, Societies & Justice, University of Washington, 2010.