We continue to get questions about visa issues, and one that was particularly poignant was whether trans creators would be detained or denied when crossing the border into the U.S. As with the rules on work for tourist and business visas, this is another area where visa rules raise serious questions about creators’ freedom of expression. As Gender Queer author Maia Kobabe said after the CBLDF helped defeat the attempt to have the book declared illegal in Virginia, comics enable us to show ourselves as we want to be seen – what, then, are we to make of rules that keep certain creators and their work out of view?
In addition to the general rules applicable to visas, LGBTQ+ travelers face additional scrutiny at the border due to Executive Order 14168, which concerns sex and gender identity. This EO expressly applies to visas, and the State Department has implemented the EO as follows in its Foreign Affairs Manual, 9 FAM 403.2-5(B)(1)(f):
f. Passports that do not list male or female: The sex reflected on any issued visa must match the visa holder’s biological sex at birth, even if it differs from the sex listed on the passport. In those instances where a passport does not list a “male” or “female” in the sex field, you must list the applicant’s biological sex at birth on the visa application.
If a border agent following this rule believes that a traveler’s visa does not accurately reflect the traveler’s “biological sex at birth,” this could cause a delay or denial of entry into the U.S. I likewise suspect that a discrepancy, say, between a person’s visa name and a passport using their deadname could raise a red flag.
The State Department is also reported to have told U.S. consulate staff worldwide to consider imposing a permanent lifetime ban on athletes who apply for a visa with a gender identity different from the government’s current definition of biological sex, on the ground that one’s self-reported gender identity constitutes a fraudulent misrepresentation under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. Although this directive expressly refers to athletes, it could lead border agents to challenge the entry of other trans travelers as well.
Development in this area continue to evolve as these and other new government rules continue to make their way through the courts, but I’m going to dig deeper into where things stand with respect to visas – there’s been a court order that has suspended enforcement of a similar rule applicable to U.S. passports, but even if a restraining order were to surface, that would not necessarily stop problems from occurring at entry. This is definitely an area in which affected travelers should consult an experienced and knowledgeable attorney for advice.