Former President Barack Obama spent the last few days of his presidency readying America for a Donald Trump administration. He designated new national parks to prevent drilling, commutated sentences for Chelsea Manning and Oscar López Rivera and, as it turns out, helped ensure transgender immigrants are able to get their legal documents in order.
The memo, available on the U.S. Citizenship and Immigration Service's policy memoranda page, requires that USCIS change the gender marker on an official document if the person applying for the document presents:
• a court order granting change of sex or gender
• a government-issued document (amended birth certificate, driver's license, etc.) reflecting the requested gender designation
• a letter from a licensed health professional affirming the applicant's gender identity
The most substantive change to the policy is an expansion of the documents accepted to change the gender marker. Previously, applicants needed to supply an amended birth certificate, passport, court order or doctor's note. Accepted documents include the aforementioned, as well as driver's licenses and other federal, state and local official documents that reflects the person's gender identity. Additionally, applicants can now supply official documents from foreign governments.
According to Harper Jean Tobin, policy director at the National Center for Transgender Equality, these are "modest, fairly technical updates" to a policy that's already existed for five years at the federal level. Tobin also pointed out that some states — such as Massachusetts, Maine, Hawaii and Connecticut — have similar or even more progressive stances on changing gender markers.
Tobin said the most important part of this update is that immigrants can now much more easily have all of their USCIS-issued documents — like work permits, visas and green cards — reflect the same gender.
"We’re talking about people who need to update these documents to reflect the way they live their lives every day," Tobin said. "If someone lives as a man and works as a male and his ID says he is female, it’s embarrassing for him and potentially confusing for his employer or any other official he may come in contact with. Having policies like this that make the procedure better makes sense."
While this benefits documented immigrants, the memo does not help undocumented immigrants, who face an uncertain future under a Trump administration. Trump has already made a slew of announcements about his plans for the American immigration system, including signing an executive order to build his infamous wall and proposing to ban refugees from certain countries from entering the United States. Trump's policies will put barriers, both physical and bureaucratic, between the United States and those looking to immigrate here.
While transgender rights and immigration have been huge issues during the 2016 election, rarely did the media cover them together. Trans immigrant rights last made national news in 2015 when activist and transgender woman Jennicet Gutierrez interrupted Obama during a White House LGBTQ reception to advocate for trans people being mistreated in immigrant detention centers.
The memo does leave open some leeway for USCIS to request more of transgender applicants, however. According to the memo, USCIS can request "additional evidence" of a person's gender identity. The memo also says that if an officer finds "significant substantive discrepancies" or suspects fraud, the case may have to go to a higher authority.
Obama has been an advocate for transgender people in more ways than one. Aside from this eleventh-hour policy memo, Obama's administration issued a historic directive on equal-rights statute Title IX that allowed for transgender students to use public school facilities that matches their gender identity.