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Marriage With Transsexual Upheld Under US Immigration Law

by Cyrus D. Mehta and Elizabeth T. Reichard

The Board of Immigration Appeals (BIA) has held that a marriage, where one of the parties is a postoperative transsexual, will be recognized for immigration purposes. In Matter of Lovo, 23 I&N Dec. 746 (BIA 2005), the BIA reversed the decision of the Nebraska Service Center (NSC) denying an I-130 petition that was filed by a US citizen spouse on behalf of a native and citizen of El Salvador.

The petitioning spouse, a US citizen, was born in North Carolina and was a male at the time of birth. On September 14, 2001, the US citizen spouse underwent a surgery that changed her sex from male to female. She then married a citizen of El Salvador on September 1, 2002, in the state of North Carolina. North Carolina issued her a birth certificate reflecting her sex as a female and also recognized the marriage. She was also issued a driver’s license listing her current name and indicating that she was a female.

The petitioner filed an I-130 petition to sponsor her El Salvadorian spouse for permanent residence. On August 3, 2004, the NSC issued a denial. The NSC denied the petition on grounds that there was no legal basis to recognize a change of sex so that a marriage between two persons born of the same sex can be recognized and that this marriage was considered valid for immigration purposes, even though it may have been recognized in the state of North Carolina.

The BIA reversed the NSC’s decision by adopting a two-prong analysis to determine the validity of the marriage. First, whether the marriage was valid under the state law; and then whether the marriage qualifies under the federal Immigration and Nationality Act (INA).

The BIA examined that § 130A-118 of the General Statutes of North Carolina authorizes issuance of a new birth certificate when a individual has undergone sex reassignment surgery. Although another statute of North Carolina only authorizes a marriage between a male and a female, and not between the same sex, the fact that North Carolina recognized the petitioner’s change of sex from male to female, the BIA concluded that the marriage was valid under the laws of North Carolina.

The BIA then analyzed whether the marriage was recognized under the INA. Although the Act has not defined the word “spouse,” the BIA referred to the Defense of Marriage Act (DOMA), which was silent on the issue of how to define a marriage between two spouses where one is a transsexual. The DOMA was only explicit with regard to not giving federal recognition to a marriage between parties of the same sex. Indeed, the BIA noted that the failure of the DOMA to address this issue was the basis of the NSC director’s erroneous decision to deny the I-130 petition. The NSC director found that because Congress had not addressed the issue whether sex reassignment surgery serves to change an individual’s sex, there was no legal basis on which to recognize a change of sex for immigration purposes.

The BIA then examined the legislative history of DOMA and did not find any evidence of the DOMA being enacted to invalidate a marriage involving a transsexual. The legislative history of DOMA did not mention the case of M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. App. Div. 1976) in the state of New Jersey involving the recognition of a marriage where one of the spouses was a transsexual. Thus, the BIA opined that Congress only intended to restrict marriages between persons of the same sex and there was no indication that the DOMA was meant to apply to a marriage involving a post-operative transsexual where the marriage is considered by the State.

The BIA’s decision is an important one and goes a long way in recognizing marriages where one of the parties is a postoperative transsexual. In an earlier article (Mehta, The Status of Transsexuals Under U.S. Immigration Law,) we had criticized the US policy that was enunciated in a memorandum by William R. Yates on April 16, 2004. The Yates memo stated that the CIS shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claim to have changed their sex.

Indeed, the BIA decision rejects the Yates memo and shares some of the reasoning in our earlier article, especially with regard to the anomalous outcome that would result if such a marriage was not recognized for immigration purposes. We argued:

Suppose a person born a woman goes through a sex reassignment surgery and becomes a man, and the state recognizes this gender change and provide a new birth certificate. If this individual were being sponsored under the employment-based immigrant category, CIS would have no problem in issuing a green card to this individual recognizing him as a man. If this man subsequently wishes to marry a foreign national woman and the state allows him to do so, CIS will not recognize such a marriage for purposes of conferring an immigration benefit to his foreign national spouse. CIS, for this purpose, would presumably still consider this individual to be a woman. Suppose this man (who was originally a woman and is still considered a woman by the CIS) wishes to marry another man, and this marriage takes place in Massachusetts that recognizes same-sex marriages. The CIS has previously articulated that it will not recognize same-sex marriage for immigration purposes; although in this example, the CIS should technically recognize the marriage because it considers this individual still a woman and not a man! Id.

In light of this argument, Footnote 5 of the BIA’s decision is worth noting: “For example, the marriage of a postoperative male-to-female transsexual to a female in a State that recognizes marriages between opposite-sex and same-sex couples would be considered valid, not only under State law, but also under Federal law, because, under the DHS’s interpretation, the postoperative transsexual would still be considered a male, despite having the external genitalia of a female.”

We welcome this decision as it will enable spouses to apply for permanent residency where one is a postoperative transsexual. We find the BIA’s reasoning consistent and appreciate that it acknowledges the contradictory analysis proffered by the Nebraska Service Center and William R. Yates. It sets forth a clear rule that defies neither state law nor federal law. As such, we are pleased that there is now a venue available so that a group of people – who have taken the steps to become their true sex – can obtain the immigration benefits available to others who enter into lawful marriages.

This article originally appeared on

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York. The views express in this article do not necessarily represent the views of International Partners in Mission.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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