Love Sees No Borders - Transgender People and PPIA

Note (8/26/2003): The Bureau of Citizenship and Immigration Services (former INS) has recently begun to claim that heterosexual marriages, where one partner is transgender, are, for immigration purposes, same-sex relationships. Under this interpretation, such marriages are not valid for purposes of immigration due to the Defense of Marriage Act. The BCIS is currently being challenged on this interpretation.

Transgender People and the PPIA

By Marta Donayre, National Center for Lesbian Rights
and Chris Daley, Transgender Law Center
December 2002

PPIA is short-hand for the Permanent Partners Immigration Act, a federal bill that is being considered in Washington DC. PPIA would amend US immigration law to allow a US citizen or permanent resident who is unable to marry their partner to sponsor their partner for immigration. Currently, this right is only available to someone who is legally married.

That means that, as the law now stands, many couples are being torn apart when one partner's visa expires. Some people choose to overstay their visa to remain with their partner even though doing so puts them at great personal risk and affects their ability to work legally. In order to overcome these burdens, activists and legislators introduced PPIA in the U.S. House of Representatives in 2000.

Since its introduction, PPIA has garnered increasing support from law makers. However, has yet to succeed in becoming law. In fact, with a Republican House and Senate currently in Washington, most experts believe that PPIA has a slim chance of becoming law in the next two years. Nonetheless, PPIA, when enacted, will offer a number of benefits to transgender communities.

The first benefit is the contribution that immigrants make to the US economy and culture. Transgender communities, like the rest of the United States, will benefit from the skills and enthusiasm that immigrants admitted to the US under PPIA will bring with them. PPIA will also help to bridge the inequalities that exist between heterosexual and same-sex relationships therefore moving the U.S. towards becoming a more equitable society.

PPIA's second, and more direct, benefit will be the ability of many transgender people to bring their partners to, or to join their partners in, the United States. The couples that most clearly fit into this category are those same-sex couples where at least one partner is transgender. Less obviously, the PPIA will also grant or re-enforce immigration rights for heterosexual couples where one partner is transgender.

Clearly, without PPIA, couples in a valid marriage have immigration rights that non-married people don't have. For immigration purposes, the key word there is "valid." Until the last decade, or so, our "legal sex" was assumed to be the one we were assigned at birth. Because of that faulty assumption, the validity of a marriage where one partner is transgender is disproportionately open to challenge.

Because marriage is a state issue in the U.S., the validity of marriages involving one transgender partner varies from state to state. In the few states where courts have decided the validity of a marriage entered into after one partner has transitioned, the results have been split. While California and New Jersey both have cases upholding the validity of marriages in those states, the Kansas Supreme Court recently invalidated such a marriage. And to make national matters even more unclear, the overwhelming majority of state courts and all state legislatures have so far been silent on the issue.

For many married or engaged couples, where one partner transitioned before the marriage, an interview with the U.S. Immigration and Naturalization Service (INS) can be harrowing. The INS typically investigates the validity of all marriages that are being used to sponsor one of the partners for immigration. However, the INS does not currently have a formal policy for determining the validity of a marriage when one of the partners is transgender. Therefore, the INS officer conducting the hearing can use their discretion to ask invasive, and oftentimes, inappropriate questions about the anatomy of the transgender partner and the couple's sex life. Obviously, such questioning can be incredibly stressful for the parties involved.

In determining if the marriage is a valid one for the purposes of sponsorship, INS officers have often looked to the law in the state where the marriage was, or will be, performed. If the marriage happened in a state like Kansas, the INS would likely not allow a US citizen or permanent resident to sponsor their spouse, if that person or their partner is transgender. The PPIA directly addresses this problem.

As drafted, the PPIA defines a permanent partner as, among other things, someone who is "unable to contract with [their partner] a marriage cognizable under the INA" (Sec 2, [2]). Unlike some domestic partnership statutes, the language in this bill does not limit permanent partnership to "opposite sex" couples.

Therefore, if the PPIA becomes law, couples in a heterosexual relationship where one spouse is transgender will have two chances to secure immigration rights. The couple can apply for those immigration rights associated with their marriage. If their marriage is found to be invalid by the INS, the couple could then apply for immigration rights under PPIA. In fact, the finding of an invalid marriage would seem to automatically meet the above prong of the permanent partner definition. While PPIA will not also grant these partners all of the other benefits of marriage, it will at least prevent the couple from being torn apart simply because they can not get married.

US immigration law is largely based on the principle of family unification. PPIA extends that principle to LGBT families. Up until now, PPIA has been seen as mainly a benefit to same-sex couples. However, because the bill was drafted using inclusive language, transgender people in heterosexual marriages in some states would greatly advantage from PPIA.

The effort to get PPIA passed continues. To find out more information about the bill, see the Lesbian and Gay Immigration Rights Task Force website (www.lgirtf.org). The site lists a number of steps you can take to help build momentum for passage of the bill.