"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Saturday, May 14, 2011

In the Matter of Jose Mauricio Lovo-Lara

A DOMA transgender immigration law decision.  Nice case, but it gives me survivor's guilt.

What would the result have been had it been a Texas couple (with Littleton v. Prange hovering about in Texas case law) rather than a North Carolina couple?

(Note: This is an administrative agency decision from the "Board of Immigration Appeals". The BIA reviews decisions by immigration judges, etc. Appeal from here is to the area federal district court or the area federal appeals court.  In the citation, "I&N Dec." means "Immigration and Naturalization Decision".)

In the Matter of Jose Mauricio Lovo-Lara, 23 I&N Dec. 746 (BIA 2005).

Summary: U.S. citizen ("Citizen") was a post-operative male to female transsexual. Citizen married a man from El Salvador ("Salvadoran") in North Carolina.  Citizen applied for a visa for Salvadoran, based on the fact that Citizen and Salvadoran were married. Along with the visa application, Citizen submitted other documents.  These were a North Carolina birth certificate saying Citizen was female, an affidavit from a doctor saying that Citizen had had sex change surgery, a North Carolina state court order changing Citizen's name, the North Carolina "Register of Deeds" record showing that Citizen and Salvadoran had married, and a North Carolina driver's license showing Citizen's new name, and listing her sex as female.  The immigration office said that (1) both Citizen and Salvadoran were born male; (2) Congress has not recognized marriages involving transgender people; and (3) DOMA requires "marriage" to be interpreted under immigration law as being only between a man and a woman; so (4) Citizen's application for a spousal visa was based on an unrecognized same sex marriage. The application was therefore denied.  Citizen appealed.

Decision: Visa application approved.  

I.  Citizen and Salvadoran's marriage was valid under North Carolina law.  North Carolina does not permit same-sex marriages, but it does permit altering birth certificates to reflect changes of sex (if you submitted an affidavit from a doctor), which North Carolina did here, and recorded the marriage, as well.  

II.  DOMA doesn't address post-operative transsexuals, so BIA must "look to the rules of statutory construction":  Plain language of statute bars same sex marriages.  Legislative history of DOMA indicates it was passed in response to the possibility of same sex marriages becoming legal in Hawaii.  Legislative history of DOMA indicates it was passed only with concern about marriages between homosexuals, not marriages involving transsexuals.  Legislative history frequently mentions "homosexuals", and uses that word interchangeably with "same sex".  Legislative history does not indicate that Congress mentioned MT v. JT, 355 A2d 204, a New Jersey case from 1976 recognizing transsexual marriage.  Congress did not mention, in legislative history of DOMA, state statutes that existed at the time DOMA was passed that allowed for "legal recognition of changes of sex".  Legislative history also contains sentence that says, "Prior to the Hawaii lawsuit, no State has ever permitted homosexual couples to marry", despite existence of MT v. JT, and despite existence of trans-marriage favorable statutes.  Therefore reasonable to conclude that with DOMA, Congress only intended to invalidate marriages between homosexuals (for purposes of federal law), not transgender marriages considered heterosexual marriages under state law.  Also, except for DOMA's narrow exception, marriage continues "exclusively" to be a state law matter.  Therefore, state determinations of marital status must continue to be deferred to, and it's the wrong approach to say that Congress must legislate on transsexual marriage before it can be recognized, if North Carolina recognizes it.      

III.  Opposing counsel argued that meaning of "man" and "woman" under DOMA should be defined by chromosomes and assigned sex at birth.  However, chromosomes are not necessarily controlling because (1) "medical experts" say there are actually "eight criteria" for determining male and female (chromosomes, gonads, internal sex organs, external sex organs, hormones, secondary sex characteristics, assigned sex and gender reared as, and sexual identity); and (2) the chromosomes of intersex people may not match their sex.  Assigned sex at birth is not controlling because it may (for example at puberty) prove later to be wrong.

This case is on the Justice Department's web site, here.  

No comments:

Post a Comment