Couple Sue Agency Over Marriage Rule
Immigration services refuses residency to a man whose wife had a sex-change operation
Ann M. Simmons, Los Angeles Times
December 6, 2004

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.

Abramowitz said the descriptions "same-sex" and "gay" do not apply to his clients.

"It's not gay marriage or same-sex marriage," he said. "This is a marriage between a man and a woman. The question becomes, what really is the definition of a woman?"

A specialist in transgender issues offered another take on the policy.

"The federal government is trying to assert some kind of federal definition of gender for purposes of marriage, which is far beyond the traditional powers of the federal government," said Chris Daley, director of the Transgender Law Center, a San Francisco-based civil rights advocacy group.

Daley said the center was currently providing legal assistance in three other cases in which one of the spouses had undergone a sex change. In all three cases, the couples' attempts to get permanent residency for the immigrant spouses had been denied.

One California group argues that unions involving people who have had sex-change operations do not fit the traditional definition of marriage.

"A man can't marry a man pretending to be a woman, because that's not marriage. It's junk science and political manipulation of the system," said Randy Thomasson, president of the Campaign for Children and Families, a recently formed, Sacramento-based family values group.

Ganzon, 58, who was born Celedonio Secusana Ganzon, a male, underwent surgery to become female in 1981 in Colorado. A registered nurse and Philippine native, Ganzon has lived legally in the United States since 1974, becoming a U.S. citizen in 1987. Ganzon's naturalization certificate identifies her as female and bears her female name.

She met Javellana, 27, in the Philippines in December 2000 during a trip to visit her mother. The two were introduced by Ganzon's nephew and were instantly attracted to each other. Javellana said he was struck by her warmth and friendliness; she remembered his politeness, demure persona - and his clean feet.

"I was sold," said Ganzon, a petite brunet with high cheeks whose youthful appearance belies her age.

The couple got engaged in early 2001, and Ganzon filed a petition with U.S. immigration authorities to have Javellana enter the country as her fiance. The request was approved.

Javellana came to the U.S. in September 2001 and the couple married later that year in Clark County, Nev., fulfilling the terms of the fiance visa, which requires marriage within 90 days of entering the country.

Ganzon and Javellana share a one-bedroom apartment in Los Feliz Village. Numerous Christian icons grace its walls and shelves.

Ganzon voluntarily mentioned her sex change during an interview with immigration officials regarding Javellana's application for permanent residency. She had assumed they already knew. Now she regrets saying anything and says she is tormented by what might happen.

"I cannot imagine … that anybody can take your husband away from you," said the chatty Ganzon, sweeping curly tresses back from her face, her eyes momentarily welling with tears. She added: "Jiffy is my soul mate. He has a big heart."

Said Abramowitz: "If she wouldn't have told the truth, she wouldn't have gotten found out. You are penalized for being honest."

Javellana, an athletically built man of calm demeanor who speaks limited English, lost his job as a kitchen worker for a local medical institution in October after his work permit expired. His current immigration status prevents it from being renewed.