Sex and the Citizen
Donita Ganzon
News: The US immigration agency doesn't recognize marriages involving transgender people--so Donita Ganzon is taking it to court.
May 25, 2005
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Last June, Donita Ganzon and Jiffy Javellana showed up at the Los Angeles district office of the US Citizenship and Immigration Services for what they thought would be a routine interview. Though she was born in the Philippines, Ganzon, a 58-year-old nurse, is a US citizen. Javellana, her husband of three years, is a 28-year-old Filipino immigrant. Having lived happily with his wife in the US for several years, Javellana expected to come away from the interview with a green card in place of his temporary work visa.
Instead, his application for permanent residency was denied, and he now faces deportation.
What happened? As Ganzon tells it, during the interview she casually mentioned to an immigration officer that she'd had a sex change operation years before. To look at her today, that's hard to believe: Ganzon is an elegant and very feminine woman with a slender figure, large brown eyes and a smooth complexion. "You look at me now, my soul, my heart—I am a woman," she says. Her husband agrees. "It didn't matter to me [that Donita had a sex change,]" he says. What's more, her driver's license, marriage certificate, and passport all have her down as a woman. And yet, it's true: Donita Ganzon was born male, and and it wasn't until 1981, at age 34, seven years after first coming to the United States, that she decided to undergo surgery to become a woman.
And that, at least by the Bush administration's lights, is a problem. Citing the Defense of Marriage Act of 1996, which defines marriage as being strictly between a man and a woman, the CIS––formerly the INS, and now operating under the aegis of the Department of Homeland Security—argues that Ganzon's and Javellana's is a gay marriage—and hence, under federal law, no marriage at all. Therefore, CIS argues, he's ineligible for a green card. (The noncitizen spouse of a US citizen can receive a green card—which allows him or her to work indefinitely in the United States—after a few years of living together in the US, if the immigration authorities accept that the marriage is in good faith.)
Ganzon's lawyers are filing a discrimination suit in district court arguing that, because the couple's union is on all defined legal terms a heterosexual marriage--Ganzon being a woman, Javellana a man-- Javellana is fully entitled to a green card under US law.
Until the Bush administration came to power and gay marriage became a new front in the country's culture war, the marriage rights of transgender people weren't much of an issue on the federal level. Twenty-three states recognize as heterosexual marriages unions in which one or more partner is transgender, and of course marriage policy has traditionally been a matter for states to decide for themselves. But recent CIS memos show that the federal government has lately taken an interest in defining the marriage rights of transgender people--or rather defining them away. Since March 2003, three CIS interoffice memos (obtained by Ganzon's lawyers) have been circulated, noting, among other things, the "differing state practices related to the issuance of new birth certificates and marriage licenses" and "inconsistent adjudications … for applicants who have undergone sex reassignment surgery." One memo, addressed to Tom Ridge, then head of the DHS, observes that recognizing sex change for immigrant marriages "is likely to be politically controversial." (A spokeswoman for the Department of Homeland Security declined to comment on the issue, citing the lawsuit.)
Ganzon and Javellana were married in Nevada and now live in California, both states that recognize sex-reassignment surgery and heterosexual marriages in which one or both partners have had a sex change. The CIS is trying to override a state law by creating federal guidelines that would, for immigration purposes, withhold federal recognition of these marriages.
Ganzon's case is one of at least ten currently relating to marriages involving a transgender partner, half a dozen of which touch on immigration rights--signs of a new assertiveness on the part of transgender people. "There are just a lot more of us out now," says Maura Keisling, Executive Director of the National Center for Transgender Equality, "there are more and more trans[gender] people willing to step out and demand their rights."
Transgender ("transsexual" is also used), is an umbrella term used to cover a wide range of individuals. At one end of the spectrum you have cross-dressers; at the other, men and women who feel impelled to have a sex change operation—or, in medical parlance, to undergo "sex reassignment surgery"—to align their physical "sex" with their psychological "gender." An estimated one in 2,500 people undergo male-to-female sex reassignment surgery, but the incidence of individuals with unmatched gender and sex is presumably much higher once you factor in those who are unable or unwilling—for social, cultural, physical, or financial reasons—to have surgery.
"Being transgender is more common than cystic fibrosis," Debra Davies-Soshoux, one of Ganzon's and Javellana's attorneys, says, "but it has to do with sex, and people in this country are uncomfortable with anything that has to do with sex." The National Center for Transgender Equality logs at least one call a week from transgender people who have been fired from their jobs. Transgenders are often the victims of hate crimes, and are murdered at 16 times the rate of average Americans.
The DHS' latest response, in February, to Ganzon's lawsuit was to reinstate Javellana's temporary work permit, which had expired in October. On March 28th, Ganzon and her lawyers pushed for a motion to grant Javellana his green card in Los Angeles Superior Court. But the government's response has been slow, and the couple and their lawyers are frustrated. "We were able to go to federal court, but they're taking their sweet time, and still haven't changed their policy," Davies-Soshoux says.
Ganzon never expected to become a spokesperson for immigrant rights or LGBT marriages. In fact, prior to this lawsuit, she had never had a relationship with the transgender community. "I'm not really in contact with them," Ganzon says, "It is much more of an inner satisfaction for me that I can blend in with all kinds of people."
Javellana, for one, can't wait until this whole thing blows over. A quiet, laid-back man who loves basketball, he is embarrassed by all the attention and worried about his future in the United States. "I'm ashamed because I stand out," he says.
The outcome of the lawsuit remains uncertain, but Ganzon and her lawyers intend to keep up the fight, whatever it takes. "I am part of a milestone decision right now," Ganzon says, "and I will always be there for my husband, no matter what."
UPDATE: On May 18, the Board of Immigration Appeals issued an important decision, Matter of Lovo, overturning the denial of an I-130 visa petition where one of the spouses is transsexual. The decision sets an important precedent for transgender immigration rights.
Lisa Katayama is an editorial intern at Mother Jones.
