Transcript
Robert Evans (0:00)
This is an iHeart podcast.
Garrison Davis (0:02)
Guaranteed Human.
Robert Evans (0:07)
Hey everybody, Robert Evans here and I wanted to let you know this is a compilation episode. So every episode of the week that just happened is here in one convenient and with somewhat less ads package for you to listen to in a long stretch if you want. If you've been listening to the episodes every day this week, there's gonna be nothing new here for you, but you can make your own decisions.
Garrison Davis (0:32)
The past few weeks my social media feeds have been more apocalyptic than usual, oddly enough. Not due to the escalating war with Iran, the shell shocked economy or oil prices, but because of a wave of posts and news articles proclaiming impending doom for trans people in the United States. Attacks on trans rights are obviously not new and have steadily risen the past 10 years, but this recent collection of worrying claims are especially grim or outright genocidal. Just this month I've seen viral posts citing online articles saying that ICE is going to round up and quote unquote disappear trans people, that the FDA is making a quote unquote registry of trans women, and that an adult trans healthcare ban is imminent. Welcome to It Could Happen Here, a show about things falling apart. I'm Garrison Davis. For this episode, I'd like to emphasize the could in it could happen here. It's not. It will definitely happen here and there's nothing you can do to stop it. These panic inducing claims and the articles they're sourced from are referring to real things or movements happening in either right wing activism or anti trans policy and legislation, but are framed in a way to maximize catastrophe rather than actually understanding what's happening at the moment and what we can do about it. Left unchecked panic, clickbait reduces the process of staying informed to being in a state of constant doom and feeling hopeless against an unstoppable enemy. Or it makes someone completely check out and not believe anything they see online, even if there is a real pressing threat, both of which cloud our ability to assess and respond to very real threats. For the bulk of this episode, I'm going to focus on an article that claims ICE is now permitted to detain anyone for quote, unquote looking trans. This reporting and the online discussion around it is a microcosmatic example of how we understand both the Trump administration's attacks on trans people and how and why ICE operates as an agency. This story can be traced to a substack post with the headline Trump Administration Opens the door for ICE to target anyone Suspected of being trans. The sub headline continues by reading, quote, under a new rule the State Department will be able to revoke trans people's visas over quote unquote misrepresentation. It'll give ICE grounds to suspect all trans people of being in the US Illegally. Unquote the information contained in this headline is the furthest many people will engage with the content of this article. Combining that headline with preconceived notions about how ICE functions under the second Trump administration makes this a very frightening claim. So what evidence does the Substack article include to support this claim? Earlier this month, the State Department updated its policy for the diversity immigrant visa program, also known as the green card lottery. The new rules require that applicants upload a scan of their foreign passports, biographic and signature page to cut down on fraudulent diversity visa program entries. The policy update also changed the gender entry to sex on application forms. In the policy rule update, the State Department wrote the marker reflected in the sex field on any visa application, including the entry form, 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. Unquote the substack article claims this could force a quote, mismatch between trans people's applications and their passports, something it can then use to declare their applications fraudulent and disqualify them entirely. Unquote. The first half of that sentence is true. A mismatch may occur between the gender listed on foreign documents and the sex the US 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 US Government officially recognized 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, there may be instances when a consular officer becomes aware that the sex listed on the foreign passport may not be the applicant's sex as defined in the executive order. 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, unquote 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 requesters 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. This same sports related memo, dated February 24, 2025, also states, quote, if there is a discrepancy either in the applicant's documents or in electronic consular records, or if other evidence casts reasonable doubt on the applicant's sex, you should refuse the case under 221G and request additional evidence to demonstrate sex at birth, unquote. Section 221G of the Immigration and Nationality act is a temporary visa refusal pending further documents or information provided by the applicant. For an athlete visa, the bar is very high and the burden is on the applicant to prove they have the special and rare qualities required to be eligible for a visa. But the substack article doesn't just claim that being trans could disqualify you from receiving a visa. The article escalates its claims, stating that trans people who already have a valid visa could have it revoked and be deported for misrepresenting their sex in the past, citing US Law that if an alien is found to have obtained a visa, quote, by fraud or willfully misrepresenting a material fact, they are ineligible to be in the United States. The article also refers to a section of the Foreign Affairs Manual which includes providing, quote, a fake birth certificate in support of an immigrant visa application as misrepresenting a material fact, unquote. The article goes on to assert that the Trump administration could refuse to recognize trans people's amended birth certificates from foreign countries and essentially consider them, quote, unquote fake, thus making their visa eligible to be revoked by, quote, unquote misrepresenting a material fact. The author of the substack links to another one of her own articles on a new policy regarding the issuing of US Passports with sex markers reflecting biological sex at birth. The passport policy instructs State Department employees to check birth certificates for signs of being amended and if they are amended, request more documents that list sex at the time of birth, such as medical records, hospital records, or early school records. ACLU staff attorney Picasso says that this does not mean entire amended birth certificates are quote, unquote fake for the purposes of establishing fraud or willful misrepresentation, which is again a high bar. And the Trump administration has never argued this as such. Quote, I think it's dangerous to even suggest that a legally obtained and valid birth certificate could be viewed as quote, unquote fake without a much clearer statement from the federal government to that effect. Picasso advised in Trump's recent travel bans, they have specifically mentioned the availability of fabricated birth certificates in certain countries, and this whole claim about Trans people's visas being revoked because of applications of misrepresentation is contradicted by the State Department, which said last year, quote, currently valid US Visas issued prior to the effective date of this guidance bearing a sex that differs from the visa holders sex as defined in Executive order will remain valid through its expiration date. The visa holder does not need to apply for a new visa with an amended sex marker until the current visa expires, unquote. So the first half of this article covers what I argue are gross misrepresentations of State Department visa policy. The second half of the article speculates on how this misrepresentation could be enforced by ice. In a Supreme Court ruling last year, Justice Kavanaugh wrote that ICE could detain people based on a combination of factors such as working a certain kind of job, ethnicity, and speaking Spanish or talking with an accent. Kavanaugh said that ICE can detain someone for questioning, quote, if they have a reasonable suspicion based on specific articulable facts that the person being questioned is an alien illegally in the United States. The author of the substack article argued that Kavanaugh's concurrence, quote, unquote effectively permitted ICE to use the fact that someone looks trans as the, quote, specific articulable fact allowing its officers to question, harass, detain, and even deport both citizens and non citizens as long as it has a reason to claim that being trans makes a person more likely to be in the US Illegally, unquote with this substacker adding that because of State Department policy requiring applicants to list biological sex at birth on forms, quote, ICE now have the enforcement rationale to assert that trans people are more likely than CIS people to have misrepresented themselves during the visa process and therefore are more likely to have entered the country unlawfully, unquote. This assertion from the substacker rests on the idea that looking trans makes someone more likely to be in the US Illegally. This idea is not supported by any immigration policy memo or guideline. It also assumes that the justification for a Kavanaugh stop is the same as the legal process of removal, which it is not. This idea was invented by the author of this article. It's not based on any enforcement directive from ICE and misrepresents what the State Department means by intentionally misrepresenting biological sex in the visa application process. Discrepancies in gender markers across government documents is not itself grounds for detention or deportation. In fact, it's federal policy to create such discrepancies. Furthermore, dealing with potential discrepancies between gender markers on foreign documents and the Trump Admin's insistence on only using biological sex at birth on federal documents is handled by State Department consular officers and USCIS employees, not ICE enforcement and removal operations officers who work under an entirely different agency. But the main thing that makes me believe that ICE will not suddenly start targeting people for being trans is that this State Department policy requiring sex at birth on visa applications isn't actually new. It's existed in some form since February 2025 for both immigrant and non immigrant visas. The only recent change is that the green card lottery rules have been updated to use the same language. Quote Nothing about this new rule makes it more or less likely that that ICE will be free to scrutinize trans people's documents and detain those whose documents show any inconsistencies, unquote affirmed ACLU staff attorney Melita Picasso Put plainly, State Department restrictions on stating assigned sex at birth on green card or visa applications does not give ICE any new justification to roam around disappearing random people who, quote unquote look just trans. But it could make border crossings more risky for non citizens and visa applications harder to navigate and subject to delays. This policy from the State Department is bad, but turning that into saying that ICE is now going to round up trans people and V code them doesn't understand how this will actually affect immigrant trans people or trans people currently in federal custody. Side V coding refers to this systematic enabling of sexual abuse towards incarcerated trans women to please male prisoners. Near the end of the substack article, the author suggests that trans people in Kansas could be at extra risk of getting detained by ICE because of a new law invalidating driver's license and birth certificates with amended gender markers, possibly leaving some US Citizens temporarily unable to prove citizenship with a valid birth certificate. This new law is certainly dangerous, and any attempt to strip away people's legal ID is very worrying and carries potential for abuse. In the case of Kansas, already having a passport would be really ideal. Otherwise, a hospital birth certificate or early school records can theoretically be used to help prove citizenship. And it is worth saying that a citizen temporarily losing documentation does not put them at the same level of marginalized risk as an undocumented immigrant. The new Kansas law does direct the Office of Vital Statistics to, quote, reissue birth certificates when necessary to correct the sex identification, unquote. Similarly, DMVS were instructed to reissue a quote unquote corrected license once the invalidated one was turned in. We'll be right back after these messages.
