The U.S. Department of State has implemented a new rule requiring immigrants to identify themselves by their sex assigned at birth on visa applications, causing fears the rule will be used to deny visas based on gender identity or by Immigration and Customs Enforcement (ICE) to target trans immigrants and asylum seekers.

The rule was announced in the Federal Register on March 11 as part of a package focused on “combatting fraud” in the government’s Diversity Immigrant Visa Program, which uses a lottery system to provide up to 50,000 visas per year to people from countries with low rates of immigration to the United States. However, the Australian LGBTQ publication Star Observer said the administration confirmed the rule will apply to all visas.

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The rule states the program will use the term “sex” instead of “gender” on applications in accordance with the president’s executive order declaring trans identities do not exist in the eyes of U.S. law.

The rule made it clear that the term “sex” on applications “should match the applicant’s biological sex at birth, even if that differs from the sex listed on the applicant’s foreign passport or other identifying documentation.”

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The move could create both bureaucratic headaches and heightened risk for trans immigrants who were legally allowed to update their gender on their passports in their home countries or who were allowed to use the nonbinary X marker. Discrepancies in the documentation will no doubt bring confusion and also increase the potential for the administration to target trans immigrants in its deportation crusade.

“The Trump administration’s new rule allowing DHS and ICE to scrutinize and potentially deny visas and immigration benefits to people based on perceived ‘gender identity fraud’ is the administration’s latest political attack on America’s transgender community,” Sean Ebony Coleman, the transgender founder and CEO of LGBTQ+ organization Destination Tomorrow, told The Advocate.

“While framed as an immigration measure, this rule builds on the Trump administration’s efforts to restrict recognition of gender identity and limit access to personal government documents,” Coleman said. “Policies like this create harm and open the door to profiling, harassment, and discrimination against transgender people, including U.S. citizens.”

This is far from the administration’s first attack on trans travelers. Last February, the State Department told U.S. immigration officials around the world to deny visas to transgender athletes attempting to enter the U.S. and to permanently ban any athletes who “misrepresent” their birth sex on visa applications. 

The directive, written by Secretary of State Marco Rubio, said to ban trans visa applicants under a section of the 1952 Immigration and Nationality Act that issues a “permanent fraud bar” for people who lie on their visa applications. The “fraud bar” could issue a lifetime exclusion against trans applicants with few waivers to overturn it.

The administration also stopped issuing accurate passports to trans Americans after the president signed his executive order declaring the U.S. would only recognize people’s sex assigned at birth.

The ACLU is currently suing to overturn the policy. In November, the Supreme Court ruled that the policy can proceed while the legal challenge is pending, overriding preliminary injunctions from lower courts.

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