Spouse Visas and Transgender Marriages - Matter of Lovo-Lara

On January 14, 2009, U.S. Citizenship and Immigration Services (CIS) issued a guidance memorandum for CIS adjudicators concerning Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005) in relation to the adjudication of spouse visa petitions in which one of the claimed spouses has received gender reassignment surgery (SRS - also known as gender reassignment surgery, genital reconstruction surgery, sex affirmation surgery, or sex-change operation).  Under Matter of Lovo-Lara, CIS may approve a Form I-130 (or in appropriate cases, an I-360 petition) in such a case if the petitioner establishes that, under the law of the place of marriage, the surgery resulted in a legal change of sex, and that the marriage is recognized as a valid heterosexual marriage. This guidance also applies to adjudication of a fiancée petition (Form I-129F) and to claims that one person is another person's "spouse" for purposes of the ability to accompany or follow to join a principal alien.

Previous CIS policy disallowed recognition of a change of sex for the purpose of spouse visa petitions. In the context of adjudicating spouse visa and fiancée petitions, former CIS policy did not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claimed to be a transsexual, regardless of whether either individual was postoperative transgender, or was in the process of sex reassignment procedures. It was well-settled that only a legally valid and monogamous marriage between one man and one woman can form the basis of the approval of a spouse visa petition.

The basis for the CIS position, was the traditional rule of construction that, in interpreting the statute, the words "man" and "woman," as with any other words in any statute, are to be given their common meaning in ordinary English. CIS also noted the legislative history of the Defense of Marriage Act (H. Rep. 104-664, at 13) in which the House Committee Report specifically endorsed the traditional view that one's sex is fixed at birth. Therefore, the CIS determined that absent specific statutory authority, a claimed marriage between two persons of the same birth sex was not valid for immigration purposes, even if one of them had received gender reassignment surgery.

In 2005, the Board of Immigration Appeals rejected the CIS's interpretation of the Federal Defense of Marriage Act (DOMA) in Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). The Board concluded that whether sex reassignment surgery results in a change in a person's legal sex, for purposes of marriage, is determined according to the law in which the claimed marriage took place. If the petitioner establishes that, under the law of the place of marriage, the claimed marriage is a legally valid, monogamous, heterosexual marriage, the Form I-130 (and, as appropriate, a widow's or battered spouse's Form I-360) may be approved.

Matter of Lovo-Lara involved a petitioner who was born in North Carolina, underwent sex change surgery, amended her birth certificate to reflect her sex change to female, married her husband in North Carolina and filed a spouse petition on his behalf. The Board noted that North Carolina law does not permit individuals of the same sex to marry each other, but permits an amendment to one's birth certificate, to reflect that one has received sex reassignment surgery. The petitioner submitted documentation of, among other evidence, her sex reassignment surgery and her amended birth certificate. The Board concluded that the petitioner's marriage to the beneficiary was considered valid under North Carolina law.

CIS adjudicators should, consistent with 8 CFR 1003.1(g), take Matter of Lovo-Lara as establishing that if two persons of the same birth sex claim to have married in North Carolina, and establish that one of them has received gender reassignment surgery, then the marriage is a valid heterosexual marriage under North Carolina law.

This reasoning may not apply to other States, however, even if those States also permit changes to birth certificates. Illinois law, for example, also permits such changes after sex reassignment surgery. 410 III. Comp. Stat. 535/17. This change does not however, result in an actual legal change of sex, for purposes of marriage. See In Re Marriage of Simmons, 355 Ill.App. 3d 942, 825 N.W.2d 303 (III. App. 2005). The Texas Court of Appeals reached the same conclusion, also in a case involving a changed birth certificate. See Littleton v. Frange, 9 S.W.3d 223 (Tex. App. 1999).

The basic principle of Matter of Lovo-Lara, however, is binding on CIS, no matter where the claimed marriage took place. A spouse petition (Form I-130) (and, as appropriate, a widow's or battered spouse's Form I-360) may be approved, in a case involving two persons of the same birth sex, if the petitioner establishes, by a preponderance of the evidence, that:

1. one of the claimed spouses has received gender reassignment surgery; AND
2. the person who underwent gender reassignment surgery has taken whatever legal steps exist and may be required to have the legal change of sex recognized for purposes of marriage under the law of the place of marriage; AND
3. the marriage is recognized under that law as a monogamous, heterosexual marriage.

This also applies to the adjudication of a Form I-129F on behalf of a K-3 spouse or fiancée of a citizen. In the case of a proposed marriage between two persons of the same birth sex, one of whom has received gender reassignment surgery, the Form I-129F petition may be approved if the U.S. citizen petitioner establishes that that person's legal sex has changed and the proposed marriage will be recognized under the law of the place of marriage as a legally valid non-same-sex marriage.

Additionally, if the claimed marriage between two persons of the same birth sex, one of whom has received gender reassignment surgery, is recognized under the law of the place of marriage as a legally valid non-same-sex marriage, CIS will recognize the partners as "spouses" for purposes of one spouse's ability to accompany or follow to join the other.

States that DO recognize transsexual marriages as valid heterosexual marriages:

• North Carolina - North Carolina law allows amendment of a birth certificate for persons who have received gender reassignment surgery. N.C. Gen. Stat. § 130A- 118(b)(4) (2008). In Matter of Lovo-Lara, 23 l&N Dec. 746 (BIA 2005), the Board held that North Carolina recognized a marriage as valid and heterosexual where one of the spouses had received gender reassignment surgery and her birth certificate had been amended to reflect her changed sex
• New Jersey - New Jersey law recognizes as a valid non-same-sex marriage a marriage solemnized between two persons of the same birth sex, one of whom has received sex reassignment surgery, so long as the other claimed spouse was aware of the sex change. M.J. v. J.T., 140 N.J.Super. 77, 355 A.2d 204 (NJ.Super. 1976).
• Maryland - Maryland law permits a change of the person's legal sex, on the basis of sex reassignment surgery. Re: Heiiig, 372 Md. 692, 816 A.2d 68 (Md. 2003). This case did not involve the issue of the person's ability to marry a person of the same birth sex. Until such time as the Maryland courts clarify this issue, however, CIS adjudicators will assume that Maryland law recognizes as a valid non-same-sex marriage a claimed marriage between two persons of the same birth sex, one of whom has received gender reassignment surgery.

States that DO NOT recognize transsexual marriages as valid heterosexual Marriages  As of November 2008, the following States do not recognize gender reassignment surgery as changing a person's legal sex, for purposes of marriage:

• Florida - Kantams v. Kantaras, 884 So.2d 155 (Fla. App. 2004);
• Illinois - Re Marriage of Simmons, 355 III. App. 3d 942, 825 N.W. 2d 303 (III. App. 2005)
• Kansas - Estate of Gardiner, 273 Kan. 191.42P.3d 120 (Kan. 2002).
• Ohio - Re: Ladrach, 32 Ohio Misc. 2d 6, 513 N.E.2d 828 (Oh. Probate 1987);
• Tennessee - Tennessee Code 68-3-203(d)
• Texas - Littleton v. Prange, 9S.W.3d 223 (Tex. App. 1999).

Unless the U.S. citizen petitioner establishes that the relevant adverse state law has changed, the CIS will not approve an I-130 or I-360 petition on the basis of a marriage in one of these States between two persons of the same birth sex, one of whom has received sex reassignment surgery. Nor may a Form I-129F be approved, if the proposed spouses intend to marry in one of these States.

Other States, and foreign countries, in which there are no precedent decisions:

Several States have laws providing for the change of a person's birth record to reflect that the person has received gender reassignment surgery. Other countries may have similar laws.  In light of the Illinois (Simmons) and Texas (Littleton) decisions, however, it is not necessarily the case that these statutes actually provide for the change of a person's legal sex for purposes of marriage. As of November 2008, it did not appear that the highest court of any other State had addressed the issue.

A CIS adjudicator should find that the petitioner has established the validity of the claimed marriage (or proposed marriage, for a Form I-129F case) if the petitioner establishes, based on the actual text of the relevant statute or a precedent decision from the courts of that jurisdiction (i.e., State or foreign country), that sex reassignment surgery does, in fact, result in a change in the person's legal sex.

In a case involving a claimed marriage solemnized in a foreign country, or a claimed or proposed marriage in U.S. jurisdictions other than Florida, Illinois, Kansas, Maryland, New Jersey, North Carolina, Ohio, Tennessee and Texas, and in which the statute is not clear and there is no binding precedent, a CIS adjudicator may find that the petitioner has established the validity of the claimed marriage (or proposed marriage for a Form I-129F case) if the petitioner submits a court order or a official record or statement from an appropriate agency of the Government (such as the vital statistics registrar or similar official) indicating that the person's having received sex reassignment surgery has resulted in a change of the person's legal sex under the law of the place of marriage.