A newly issued memo from Marco Rubio, effective immediately across all diplomatic and consular posts, may have just barred most transgender people with updated gender markers who are seeking visas from obtaining visas to enter the United States. The document, titled “Guidance for Visa Adjudicators on Executive Order 14201: ‘Keeping Men Out of Women’s Sports,’” is ostensibly focused on preventing transgender athletes from traveling to the U.S. However, one section appears to apply far more broadly, targeting all transgender visa applicants — not just athletes. It mandates that “all visas must reflect an applicant’s sex at birth” and grants officials the authority to deny visas based on “reasonable suspicion” of a person’s transgender identity.
“Both immigrant and nonimmigrant visa applications request that an applicant identify their sex as either male or female. Moreover, all visas must reflect an applicant’s sex at birth,” the cable reads. When verifying an applicant’s sex assigned at birth, it states that the adjudicator can “rely on documents provided by the applicant,” but that “if other evidence casts reasonable doubt on the applicant’s sex, you should refuse the case under 221(g) and request additional evidence to demonstrate sex at birth.”
The memo goes on to state that applicants “misrepresenting their purpose of travel or sex” could be targeted for permanent ineligibility. It states that some common scenarios that would trigger this is if the misrepresentation is “material,” which it states would be the case for transgender athletes entering for an athletic competition. However, even this section does not limit it to transgender athletes – many other reasons for entry may be considered “material” for transgender entrants… for instance, transgender activists, immigrants fleeing oppressive regimes, and more could be swept up under this provision.
“This document does not set a limitation on the implementation of finding material fraud in asserting a gender marker different than the one assigned at birth. Consular officers could implement this on any and all visitor, immigrant, and nonimmigrant visa applications,” says transgender attorney Alejandra Caraballo, who has previously practiced immigration law.
See provisions 6 and 7 here:
Section 6 appears to establish a new U.S. policy requiring transgender visa applicants to list their assigned sex at birth — a rule that could effectively bar entry for a vast number of transgender travelers with updated documents who wish to maintain their gender marker on their visa. If enforced broadly, this would mean that many transgender people seeking visas are, as of now, unable to enter the United States. The timing is particularly striking, as it coincides with the lead-up to World Pride, set to take place in Washington, D.C. this year. Some speculate that the vague wording of the memo may be a deliberate attempt to deter international attendees.
The memo comes as transgender people within the United States face increasing restrictions on travel documents. While they were previously allowed to update gender markers on passports, many now report that their applications for renewals or new issuances are being indefinitely held by the State Department. Some, including prominent figures like TV star Hunter Schafer, have even received passports with incorrect gender markers upon return. These practices are now the subject of ongoing litigation.
Travel restrictions represent one of the most alarming escalations in the ongoing assault on transgender rights. What began with state-level bans on gender marker updates for driver’s licenses has now expanded into a potential nationwide travel ban on foreign trans entrants who are seeking visas and severe restrictions on those seeking to leave the country. History is littered with examples of marginalized groups whose movement was curtailed as a precursor to broader persecution. Lawmakers, activists, and allies must recognize the gravity of this moment — before it’s too late.
Erin In The Morning will continue tracking enforcement of this cable, and encourages anyone affected to respond if they face travel issues on entry to the United States.
Full Memo:
This piece was republished with permission from Erin In The Morning.
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