A Los Angeles couple are suing U.S. immigration services for refusing to recognize their marriage and denying the husband permanent residency because the wife underwent sex reassignment surgery to become a woman.
Donita Secusana Ganzon, 58, had her surgery almost 24 years ago. She married Philippine native Jiffy Hojilla Javellana, 27, three years ago after he legally entered the country that year on a fiance's visa.
In July, immigration authorities denied Javellana's application for permanent U.S. residency as the husband of a U.S. citizen, saying the federal government does not recognize the marriage of two people born of the same sex. Javellana is now required to leave the country.
Lawyers say that the lawsuit, filed Nov. 29, is the first legal challenge of this element of immigration policy, and that its outcome could have far-reaching repercussions on other areas of society.
"It could have implications for the military and federal prisons and other areas where a differentiation of gender may be important," said Philip Abramowitz, the couple's lawyer. For example, Abramowitz said, if a man who had undergone a sex-change operation were convicted of a federal crime, would that person be sent to a men's or a women's prison?
The government has 60 days to respond to the lawsuit, Abramowitz said.
Officials at U.S. Citizenship and Immigration Services would not comment on the case, but they noted that federal regulations ban recognition of same-sex marriages for immigration purposes.
"The Defense of Marriage Act of 1996 states that under federal law, a marriage must be between a man and woman, and that has ramifications for all forms of marriage that may be taking place," said Bill Strassberger, a Washington-based official of the immigration agency.
In an interoffice memorandum dated April 16, 2004, William R. Yates, the agency's associate director for operations, spelled out the policy: "In the context of adjudicating spousal and fiance 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 memo reflects a department policy, not a federal law. The Defense of Marriage Act, immigration officials acknowledge, does not address the immigration status of those who change their gender through surgery.
