Obama Administration Tackled Tricky Issue of Transgender Immigration at the 11th Hour

By Dan Cadman, January 24, 2017

Just one day before the inauguration of Donald Trump as president, U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security (DHS) agency charged with adjudication and administration of immigration benefits, issued a policy memorandum: "Revision of Adjudicator's Field Manual Subchapter 10.22 - Change of Gender Designation on Documents Issued by U.S. Citizenship and Immigration Services".

Unless rescinded, by its very terms it announces a binding policy in which aliens will be given immigration documents — most significantly an alien registration "green card" — that reflects the gender that they identify with.

Both the timing and method of issuing the change reflect careful forethought — choosing the last day of the Obama administration's reign over the executive branch to issue the memo cannot have been an accident.

What's more, the agency chose to issue this as a "policy memorandum" instead of a regulatory change, which surely would have been more appropriate, given its scope. It could even be argued that by issuing the policy as a memorandum, the agency has (once again) violated the requirements of the Administrative Procedure Act. But by avoiding the regulatory process, the Obama administration no doubt hoped to slip a radical policy change under the radar of the Trump administration, which had clearly announced that it was going to freeze all proposed regulatory changes pending review.

This is not the first time that USCIS has been obliged to consider the matter of gender change. In 2012 it issued an "interim" policy memorandum discussing the need to reissue immigration documents according with the new gender of individuals who undergo sex change operations. To my knowledge that memorandum has never been superseded, and remains in effect — appropriately, to my way of thinking, given the fact of the physical gender change.

However, this new 11th hour memorandum goes beyond those who have had sex change operations and includes individuals whose physical attributes are the opposite of the gender to which they align themselves psychologically and socially. It merely requires that they present certain evidence to support the request for a change, evidence that can include:

  • A court-ordered gender identity change;

  • A government-issued document reflecting the requested gender designation, such as a state driver's license; or

  • "A letter from a licensed healthcare professional certifying that the requested gender designation is consistent with the individual's gender identity." (Emphasis added.)

Needless to say, healthcare professionals may issue such letters based on their assessments of the individual's mental or emotional state, unbound by further considerations, and it is likely that state judges would take such assessments into consideration in deciding whether to issue court orders.

And of course, states will inevitably change "gender markers", as they are referred to by the Lambda organization, on licenses to accord with court orders, and in some states, pursuant to such health care assessments or other executive policies.

I have nothing to say about transgender issues as a social matter; it is beyond my competence.

However, it is clear to me that as a matter of enforcement and security, the USCIS policy memorandum has far-reaching implications that don't appear to have been well thought through. Immigration documents are used for a wide variety of reasons, including international travel. As anyone who has ever crossed an international border knows, significant problems can arise from providing individuals with documents whose gender markers don't accord with their physical attributes. It might even come about that the alien may hail from a country that does not change gender identities in their passports at the request of the individual for any reason whatever. This would leave the person in the position of having a passport reflecting one gender, and U.S. alien registration documents in another.

Immigration and customs officials need to know precisely who they are dealing with for reasons that go beyond the psychological and social comfort of the traveler. It is an uncomfortable truth that they also are sometimes obliged to conduct searches of baggage, or of the traveler's personal effects such as wallets and purses, and sometimes even of the person. This is true throughout the world. When this happens, what are they to make of a discrepant U.S. document that doesn't accord with the physical attributes of the person or the passport presented? Will they conclude that it is an impostor? Will they then wonder whether the person is a contraband smuggler ... or worse?

And if this occurs at a foreign border port or checkpoint, where attitudes may be vastly different from those of American society, will the individual be subject to abuse or imprisonment, even in the absence of malintent? Will USCIS then have really done that individual a favor? Unlikely. And, of course, the blowback onto our government may be considerable if the trouble has begun because of documents officially issued by U.S. officials.

It seems to me that in its last-minute haste to take one more politically correct step without careful consideration of the potential adverse consequences to both individuals and to our government, not to mention public safety and security, the Obama administration has once again shown itself to be short-sighted in the extreme.