Garrison Davis

government wants you to list on a visa application.

But it is simply not the case that this mismatch will inevitably result in an application being deemed fraudulent and then denied.

The kind of fraud this rule change is trying to combat by requiring a passport scan is not unique to trans people, according to Melita Picasso, staff attorney for the ACLU's LGBTQ and HIV Rights Project.

Picasso said in an email that the new rule, quote, seems to more directly target fraudulent activities involving third parties, basically entering the lottery on behalf of individuals without their knowledge and consent, and then extorting them for large amounts of money if they are selected, unquote.

The stipulation requiring an applicant to list their biological sex at birth on forms has actually already been State Department policy for both immigrant and non-immigrant visa applications for over a year.

Effectively, since Trump's executive order mandating the U.S.

government officially recognize two biological sexes which are determined at birth, and that, quote, government-issued identity documents, including visas and all forms that require an individual's sex,

shall accurately reflect an individual's immutable biological classification as either male or female, unquote.

There's just no basis for the claim that a mismatch between the gender listed on a foreign document and the sex marked on application forms will itself, quote unquote, disqualify someone from receiving a visa.

ACLU staff attorney Melita Picasso told me that the new policy itself recognizes this could cause discrepancies

and that she doesn't see a, quote, new or heightened risk of being accused of fraud or willful misrepresentation if a transgender person follows the instructions by listing their sex assigned at birth on the application, even if they also file a birth certificate that has been updated to reflect their gender identity, unquote.

The State Department has been aware for a while that this kind of policy will create these kinds of mismatches.

A February 2025 State Department memo reads, quote,

In such cases, the adjudicator should confirm the applicant's sex as defined in the executive order, indicate that sex on the visa, and add a case note documenting any discrepancy between the passport and the visa to prevent issues at the port of entry."

Later, in April of 2025, the United States Citizenship Immigration Services officially updated their policy on requiring quote-unquote biological sex on immigration applications.

The policy also states that quote, USCIS does not deny any immigration benefits solely based on a failure to properly indicate the benefit requester's sex, unquote.

ACLU Staff Attorney Melita Picasso told me that USCIS officials have, quote-unquote, a lot of discretion and that the policy says that failure to list biological sex, quote, will cause delays in processing the application while USCIS tries to verify your sex assigned at birth, unquote.

Now, the State Department has said there are grounds to deny visa applications for trans people if they make a, quote, willful, affirmative, material act of misrepresentation by misrepresenting their, quote-unquote, biological sex at birth in application forms or to a consular officer to gain entry to the United States under false pretenses.

Legally qualifying as willful misrepresentation is a relatively high bar, and this language was specifically written with the intent to restrict trans athletes from entering the country to play sports.

The sort of misrepresentation the State Department is talking about is if a trans woman quote-unquote misrepresents her birth sex to procure a visa or admission into the United States for the purpose of competing in a women's sports competition.