Excerpted From: Lauren M. DesRosiers, Out of Bounds: Gender Outlaws, Immigration & the Limits of Assimilation, 24 Georgetown Journal of Gender and the Law 117 (Fall, 2022) (192 Footnotes) (Full Document)


LaurenMDesRosiersThe United States (U.S.) has long compelled immigrants to adopt the values of, and conform to, the dominant mainstream American culture. Arguments in favor of more multicultural models of immigration are becoming more prominent as the public conversation around immigration, culture, and heritage gain nuance and complexity. Yet resistance or failure to assimilate--and to publicly appear as outside the status quo--continues to elicit racist and xenophobic violence and derision from nativist segments of the American public.

The assimilation debate in immigration mirrors a similar thread that runs through queer and transgender advocacy. Those who support incremental, assimilationist legal advocacy, which is epitomized by the campaign for marriage equality, follow fundamentally different philosophies than those who promote a more radical re-envisioning of structures that center the needs of the most marginalized. Queer and trans immigrants sit in the crosshairs of these two debates around assimilation, both of which center on the ability of an outsider to adopt the values and practices of (straight, cisgender, white, citizen) mainstream American culture.

In gay rights legal advocacy, the assimilationist model won out with 2013's blockbuster gutting of the Defense of Marriage Act (DOMA) in United States v. Windsor, followed by 2015's Obergefell v. Hodges's guarantee of marriage equality. The sole goal of the campaign, marriage, was explicitly most salient to affluent white gay men seeking access to the conservative social stability that the institution of marriage provides. After the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health, threatening the jurisprudential underpinnings of marriage equality, a bipartisan effort in Congress with notable Republican support, passed the Respect for Marriage Act in November 2022. The assimilationist campaign continues to be credited with the rapid change in social acceptance of gay and lesbian people. Yet the social acceptance gained by some segments of the queer and trans community overshadows the fact that marriage equality has had little practical effect on the lives of many queer and trans people. The campaign's oft-cited slogan, “Love is Love,” narrows the focus of the issue to the core nuclear family; by design, the cheerful slogan masks the uglier challenges that queer, trans, and gender-expansive communities face. Queer and trans communities continue to be the target of deadly violence on numerous fronts, with little governmental or institutional protection.

Recently, trans and gender-expansive people have faced an onslaught of attacks originating from both right-wing politicians and self-proclaimed liberals, including many prominent feminists. The vulnerability of these communities, in comparison to the somewhat stronger position of some gay cisgender communities, is indicative of the limits of assimilationist advocacy. In these models, segments of minoritized communities gain ground by aligning themselves with the mainstream and differentiating themselves from those further along the “outsider” spectrum. The issues most pressing for trans people's health and safety are conceived as wholly distinct from those that confront gay cisgender communities. The wave of state-led efforts further marginalized trans people by preventing access to basic necessities, including healthcare, identity documents, and bathrooms. Trans people are further ostracized by policies that foreclose pathways to social integration, such as access to gender-appropriate facilities, activities, and sports teams. In a pattern that is, in some ways, the inverse of the comparatively increased cultural acceptance cisgender gay and lesbian people have gained, trans people have become a frequent target of escalating violence and regulation as the community has gained visibility.

One of the primary legal strategies to increase the physical safety of trans people has been improving access to accurate identity documents (IDs Making it easier to correct gender markers on state-issued IDs and making name changes easier to obtain decreases the risk that a trans person will out themself when their gender presentation does not match the gender marker on their ID. The 2015 U.S. Transgender Survey reported that “[n]early one-third (32%) of respondents who have shown an ID with a name or gender that did not match their gender presentation were verbally harassed, denied benefits or service, asked to leave, or assaulted.” Each year sees record numbers of trans people murdered: forty-four trans people murdered in 2020 and fifty-seven in 2021. For trans people, IDs with incongruent gender markers are anything but inconsequential, yet an estimated 43% of trans adults do not have IDs with the name they use and their correct gender. What gender marker an ID displays can be the difference between whether someone is in danger or not.

Those with gender identities that fall outside of the male/female binary have long been unable to obtain IDs that reflect their correct gender. Increasingly, more jurisdictions are providing “X” gender markers (commonly referred to as a third, nonbinary, or gender-neutral gender marker) on state-issued IDs in addition to binary “M” and “F” markers. The Department of State (DOS) now allows third gender markers on U.S. government documents, including passports, for those outside the M/F gender binary. New York and California recently implemented Gender Recognition Acts that allow third gender markers on state-issued IDs. In conjunction with the inclusion of a third gender marker, some of these laws no longer require physician-supplied medical certification of gender to obtain IDs with the correct gender marker and instead allow someone to select their gender marker without additional evidence. These changes make it much easier for trans, gender-expansive, and intersex people to get IDs that more accurately reflect their identities.

Many of these policies primarily, if not exclusively, are tailored towards U.S. citizens. Only a U.S. citizen can get a U.S. passport. Neither New York nor California require proof of immigration status to get a state driver's license, but both states offer a tiered system of IDs: the lower tier is only a state ID and driver's license; the higher tier, which requires proof of immigration status, is compliant with REAL ID Act requirements and can be used to board domestic flights and visit secure federal buildings. Yet it can be difficult for noncitizens of any immigration status to obtain even the documents required to get a lower tier ID, particularly for people who have a more precarious or no immigration status. This makes it harder for trans noncitizens to correct gender markers than their citizen counterparts.

Noncitizens fare little better with federal policies. The federal agency with which noncitizens may have the most contact is the U.S. Citizenship and Immigration Service (USCIS USCIS issues Employment Authorization Documents (EADs or work permits) and lawful permanent resident cards (green cards), which often function as primary IDs for noncitizens. Current USCIS policy limits gender to binary M/F markers and requires physician certification to correct gender markers for USCIS documentation.

Under the current state and federal ID landscape, documented noncitizens may have greater access to state-issued IDs than their undocumented counterparts, who may experience additional barriers to accessing accurate IDs even where they are eligible to receive them. Trans noncitizens with documented immigration status, who are most (legally) assimilated and closest to the axis of U.S. citizenship, will have more access to institutional recognition of their gender (if their gender identity falls within the two or three options available Trans noncitizens without status, or with less settled status, who are further from legal assimilation, have the fewest gender options and face significant obstacles in getting any form of ID, let alone an ID that reflects their correct gender and preferred name. As in the marriage context, the gap in access to accurate IDs between trans citizens and noncitizens, as well as the gap between trans people with a binary gender and nonbinary individuals, suggests that the assimilation of one group may exacerbate disparities and leave behind those who have been more marginalized.

The recent expansion of family-based immigration benefits to those in same-sex marriages primarily benefits gay and lesbian noncitizens who more easily conform to the white cisheteronormative ideals prioritized in the adjudicative systems DOS and the Department of Homeland Security (DHS) administer. Noncitizens whose sexual orientations, gender identities, and gender expressions are static, binary, and mono-oriented, and who most closely mirror the straight, cisgender paradigms adjudicators expect, are less disruptive to the underlying assumptions and priorities of those systems. The frontline officers who administer these systems can more easily parse relationships that follow the dominant mold that they are presumably most familiar with: that of the stereotypical straight and cisgender relationship. Doing so does not require the underlying adjudication structure to change. The adjudicator can use the same norms and metrics used to measure straight cisgender immigrants without raising the specters of fraud and deception that fluid and nonbinary identities and orientations do.

The assimilationist process shoehorns non-straight and non-cisgender individuals into an adjudicative system that does not account for the variable varied metrics queer, trans, fluid, and gender-rebellious identities raise, which often run counter to the immigration system's (white) cisheteronormative ideals. This alienates those noncitizens whose gender and orientation do not conform to that paradigm. The further away someone's identity is along any axis, access to the immigration system becomes increasingly difficult. This creates a hierarchy that privileges queer and trans people who have greater access to U.S. citizenship and who can assimilate with the white cisheteronormative culture.

This Article examines how the expansion of cisheteronormatively anchored rights leaves out queer and trans noncitizens along two axes: access to immigration benefits and access to identity. Section I summarizes the history of U.S. immigration laws imposed on non-straight and non-cisgender individuals and reviews the underpinnings of the marriage equality movement. This Article then discusses the current adjudicative landscape of family-based spousal petitions for queer and trans couples. Section II highlights two examples of the disparity in institutional recognition of queer and trans existence between citizens and noncitizens: (1) comparing recent federal guidance permitting third gender markers for U.S. passport holders to the lack of an analogous gender freedom for noncitizens while examining the limitations of third gender markers; and (2) federal immigration agencies' historical inability to follow their own guidance for queer and trans immigrants. Finally, this Article concludes that the current immigration regime privileges queer and trans individuals who can assimilate into white cisheteronormative structures, while excluding those whose identities and experiences resist that assimilation. This Article ends with a call for advocacy that resists the temptation to expand the regulation of relationships and identity, and to look instead to broader strategies that will most effectively protect more marginalized segments of our community.

[. . .]

In a post-marriage equality U.S., assimilation and its attendant splintering of interests occurs along multiple axes of privilege. Marriage equality provided a vehicle for assimilation that, in the immigration context, benefitted cisgender gay men from European countries the most. The current structure of the international marriage equality landscape, coupled with the criminalization of queer and trans lives in many parts of the world (including some places in the U.S.) functions to severely limit the benefits of marriage-based immigration to a privileged constituency of cisgender gay and lesbian immigrants from Europe and select countries in the Americas.

Meanwhile, mainstream U.S. culture is beginning to recognize nonbinary gender identities in some jurisdictions, while queer and trans people face an increasing onslaught of political and physical violence throughout the country. One solution advocacy groups have presented for nonbinary people reifies an essentialist model of gender that simply creates a new bucket, turning the dyad of M/F into an essentialized triad of M/F/X. This triad aligns with DOS's passport policy as well as other state-level Gender Rights Acts. The addition of a third option to the gender dropdown menu reinforces an essentialist paradigm of gender normativity. Rather than re-evaluating the place of gender in law and society, third-gender policies increases its importance and can widen already existing disparities in standards between citizens and noncitizens.

Where DOS's passport policy contemplates that a U.S. citizen's understanding of their gender is the only necessary evidence, a noncitizen is not given the same benefit. A noncitizen is stuck in a static gender binary, which takes ample evidence to prove when their gender differs from what they were assigned at birth. There is no indication that this will change any time soon. Current USCIS policy requires noncitizens to provide corroborating medical documentation of a gender transition to correct the gender marker on any document issued by USCIS. In contrast, a citizen needs only self-attest. Even if USCIS and DOS update their policies to permit self-attestation and include options for a third gender marker for noncitizens, queer and trans asylum seekers will nevertheless be required to present substantial evidence of their sexuality and gender identity to an unreceptive adjudicator, where the slightest variation in narrative can result in the loss of their case.

De-centering institutional validation of relationships and gender not only provides greater freedom to the individual, but also offers opportunities to invest in structures that prioritize authenticity of connection and identity over the narrow pre-drafted boxes that limit and essentialize the broad diversity of human experience. In centering the needs of those most marginalized--here, queer and trans noncitizens--rather than pushing open the door to allow an assimilated minority to access institutionalized validation and power, we could subvert these power structures and expand opportunities for all.

Visiting Assistant Professor, Immigration Law Clinic, Albany Law School. J.D., University of Michigan Law School; B.A., Bard College at Simon's Rock.