Integrity Legal

11th Jun 2010

A frequently discussed topic on this blog is that of LGBT immigration rights. Recently the United States Department of State made an announcement about new guidelines that will be implemented with regard to those seeking corrected passports and Consular Reports of Birth Abroad to reflect gender change. The following is a direct quote from the announcement:

The U.S. Department of State is pleased to use the occasion of Gay, Lesbian, Bisexual, Transgender Pride Month to announce its new policy guidelines regarding gender change in passports and Consular Reports of Birth Abroad. Beginning June 10, when a passport applicant presents a certification from an attending medical physician that the applicant has undergone appropriate clinical treatment for gender transition, the passport will reflect the new gender. The guidelines include detailed information about what information the certification must include. It is also possible to obtain a limited-validity passport if the physician’s statement shows the applicant is in the process of gender transition. No additional medical records are required. Sexual reassignment surgery is no longer a prerequisite for passport issuance. A Consular Report of Birth Abroad can also be amended with the new gender. As with all passport applicants, passport issuing officers at embassies and consulates abroad and domestic passport agencies and centers will only ask appropriate questions to obtain information necessary to determine citizenship and identity.

The new policy and procedures are based on standards and recommendations of the World Professional Association for Transgender Health (WPATH), recognized by the American Medical Association as the authority in this field.

Although this announcement marks a watershed moment for transgender rights, there are many who feel that a more pressing issue is that of US visa benefits for those couples in a bona fide LGBT relationship. At present, statutes such as the Defense of Marriage Act (DOMA) preclude Immigration benefits for bi-national same sex couples. Meanwhile, different sex couples enjoy immigration benefits notwithstanding the fact that same sex couples may have been married under exactly the same conditions as their different sex counterparts. Many feel that this disparity is unconstitutional and illegal. However, this assertion has yet to be fully analyzed by US Courts.

There are some American legislators who are attempting to deal with this perceived inequality through passage of legislation such as the Uniting American Families Act (UAFA). Some hope that so-called Comprehensive Immigration Reform will include some provision for same sex bi-national couples hoping to obtain same sex visa benefits.

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