Gender, Sexuality and Law: INS Defends Marriage from Immigrants
Harper Jean Tobin
Jiffy Javenella is facing deportation. He entered the country as a legal resident in 2001, but was surprised to find his application for permanent resident status denied late last year. Everything should be fine: his wife, Donita Ganzon, has lived in the US for twenty-five years and been a citizen for seventeen. So what went wrong? Citizenship and Immigration Services (still better known by its old name, Immigration and Naturalization Services) discovered that in 1981 six years before leaving the Philippines for America – Ms. Ganzon underwent sex reassignment surgery.
Now the couple is suing CIS, along with John Ashcroft and Tom Ridge, in a challenge to the policy underlying Javenella’s rejection. The policy, first appearing in an interoffice memo last April, states:
In the context of adjudicating spousal and fiancé petitions, CIS personnel shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claims to be a transsexual, regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so.
The basis of this policy is the federal Defense of Marriage Act (DOMA), which states that the federal government will only recognize male-female marriages. The problem in applying DOMA is that its terms, “man,” “woman,” “husband,” “wife,” and “opposite sex” have never been defined in federal law. As previously discussed in this column, states have, either through case law or by statute, adopted different approaches to the question of whether and how legal sex can be changed. This patchwork of state policies, the CIS memo notes, has led to “inconsistent adjudications within the INS and CIS offices of cases involving transsexual applicants.”
CIS’s way of ensuring consistency is to avoid adopting any rule with regard to changes of sex at all, and instead to deny recognition to any marriage involving a transsexual person. In CIS’s eyes, a transsexual person cannot marry anyone, of any sex or gender. This can’t be, I first told myself. But while CIS was not answering emails from nobodies like me, attorneys who knew about the policy told me, Yes, that’s exactly what it means.
In the 1967 case of Loving v. Virginia, the US Supreme Court held that:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.
Javenella and Ganzon’s attorneys have surely heard of Loving, even if the folks at CIS haven’t. They will probably argue that CIS’s policy denies a fundamental right to an entire class of persons and is therefore unconstitutional. Opponents of marriage equality have told gay men and lesbians that they can always marry a member of the opposite sex – but as meaningless as that possibility may be, it’s another thing again to tell someone that they can’t marry anyone.
As a result of this lawsuit, or another like it, the federal government may finally have to adopt some legal approach to the status of transsexuals – four decades after states began to do so. Will it go the way of Kansas and Texas, or the way of Louisiana and New Jersey? What shall the law recognize as “sex”: immutable chromosomes or outward appearance? Genes or social roles? Gonads or identity? Evolutionary biologist Joan Roughgarden has said that sex really comes down to a simple difference in the size of gamete cells, sperm being smaller than eggs; everything else is variable. When you think about what it means to be a husband or wife, mother or father, sister or brother, do you think about the size of your gametes?
More importantly: Decades ago Donita Ganzon realized she didn’t want her life to be ruled by the size of her gametes. Now her husband faces exile because of it. But at least he can leave his wife and his adopted nation knowing that his adjudication was “consistent.”