National
Bi-national couples await relief under Obama policy change
New hope, as immigration enforcement shifts focus
Anton Tanumihardja (left) and Brian Andersen (photo courtesy of Andersen)
Brian Andersen is nervously awaiting a phone call from U.S. immigration officials.
Andersen, an American citizen who married his spouse, Anton Tanumihardja, an Indonesian national, in D.C. in June, hopes that U.S. Immigration & Customs Enforcement will deem the deportation proceedings against Tanumihardja to be a low priority and take him out of the pipeline for potential separation from the country.
“To be a little cliche, it really would feel like a burden would be lifted from our shoulders,” Andersen said. “Of course I do know in the back of my mind, that certainly isn’t the end of the road, but it would certainly take the immediate threat away of the government tearing my spouse away from me.”
MORE IN THE BLADE: DHS GUIDANCE ON IMMIGRATION OMITS SAME-SEX COUPLES
Such an opportunity is possible for Andersen and Tanumihardja thanks to new guidance that the Obama administration unveiled last week in immigration policy. In a letter to the Senate, Secretary of Homeland Security Janet Napolitano last week indicated that authorities will conduct a case-by-case review of the approximately 300,000 undocumented immigrants facing possible deportation to determine which cases are high priority and low priority for separation from the country.
Those who have been convicted of crimes or pose a security risk will be a higher priority for deportation, while those who are deemed lower priority will be taken out of the pipeline. Administration officials will weigh a person’s ties and contributions to the community and family relationships. The Obama administration has said these criteria are inclusive of LGBT families and same-sex couples.
Tanumihardja has lived in the United States since 2002 and has sought residency in the United States through the asylum process. After losing his bid for residency through this process, he was served with a final deportation order and was set for separation on Feb. 14. However, immigration officials postponed the deportation temporarily and Tanumihardja must continue to check in with ICE officials. At any time, the deportation office can set a date for his separation from the country.
Andersen, who lives in Philadelphia with his spouse, said a call from ICE removing Tanumihardja from proceedings would provide immediate relief until action is taken to repeal the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.
“It doesn’t solve the larger issue of the discrimination of the Defense of Marriage Act, and still wouldn’t allow me to sponsor Anton for permanent residence, but it is a step in the right direction and would allow us the peace of mind knowing we can stay and continue to fight together for full marriage equality,” Andersen said.
Under current immigration law, straight Americans can sponsor their spouses for residency in the United States through the green card application process if their spouses are foreign nationals. The same rights aren’t available to gay Americans because the Defense of Marriage Act prohibits federal recognition of same-sex unions, which are only legal in six states and D.C.
Consequently, foreign nationals who are in committed relationships with gay Americans may have to leave the United States or face deportation — which could mean separation from their partner — if these foreign nationals are discovered to be undocumented or upon expiration of their temporary visas. The new policy guidance offers an opportunity for the Obama administration to cancel the deportation of these foreign nationals, enabling them to remain in the country with their partners.
Lavi Soloway, founder of Stop the Deportations and an immigration lawyer who handles deportation cases for same-sex couples, said Napalitano’s guidance demonstrates the Obama administration is offering “a greater degree of sensitivity” to LGBT families.
“Those individuals who are facing deportation, but who are married to a gay or lesbian American citizen have a more receptive Department of Homeland Security to communicate their request for prosecutorial discretion than perhaps a few weeks ago,” Soloway said.
The change builds off an existing June 17 memo from the Department of Homeland Security enabling immigration officials to exercise discretion in deportation cases that aren’t deemed high priority. Soloway said the guidelines now are still the same as when this earlier memo was issued, but the administration has signaled “an aggressive interest in setting aside low priority cases, and that would include cases involving LGBT families.”
But Soloway noted that the Obama administration has offered no timeline for when officials will complete the removal of foreign nationals in same-sex marriage from the deportation pipeline, nor whether this change would mean an end to all DOMA-related deportations.
“We don’t know how long it will take for the government to work through its pipeline of cases, and so any bi-national couples who are at risk of being torn apart through deportation should be advocating for themselves and should be presenting the evidence and making the argument to deportation officers or prosecutors,” Soloway said.
Gillian Christensen, a spokesperson for the Department of Homeland Security, responded to the Blade’s request to comment on timing with the following statement.
“ICE is focused on smart, effective immigration enforcement that prioritizes the removal of criminal aliens, recent border crossers and egregious immigration law violators, such as those who have been previously removed from the United States,” Christensen said. “The agency exercises prosecutorial discretion, on a case by case basis, as necessary to focus resources on these priorities.”
One couple that had been in deportation proceedings has already found relief after Napolitano issued the new guidance. Alex Benshimol and Douglas Gentry, a married gay bi-national couple in California, learned on Saturday that ICE dropped proceedings against Benshimol, a Venezuelan native.
In a statement, Gentry said the decision by ICE to exercise prosecutorial discretion and take Benshimol out of the deportation pipeline, effectively taking him out of danger, is “extremely encouraging.”
“This should bring hope to so many couples in our situation,” Gentry said. “As happy as Alex is, he’s still uncertain. We will still have to fight for full equality because DOMA prevents me from petitioning for his green card. But the constant fear of exile or separation is over, and for that we’re very grateful.”
The case marks the second time this year that ICE has dropped deportation proceedings against a same-sex couple. In July, immigration officials discontinued proceedings against Henry Velandia, a gay Venezuelan national, who lives in New Jersey with his spouse, Josh Vandiver.
Sujey Pando (right) and her spouse Violeta (photo courtesy Lavi Soloway)
Another couple that could receive a call from ICE and obtain relief is Sujey and Violeta Pando. The Denver, Colo, couple, who have been together five years and married last year in Iowa, received media attention last week after an immigration judge decided to postpone deportation proceedings against Sujey, a Mexican national, until January.
Violeta told the Blade that a phone call from ICE informing the couple that Sujey would be taken out of the pipeline for deportation would make them “so happy there’d be no words to describe the feeling.”
“I think there’s a possibility because under Secretary Napolitano’s memo, it listed some categories, and Sujey fits all those categories,” Violeta said. “So, I don’t see why not, she has ties to the community, she’s married to me, she’s not a criminal.”
Growing up in Mexico, Sujey was ostracized by her family for being a tom-boy and says she was raped and beaten growing up. At the age of 16, she was brought into the United States. Her deportation troubles started in 2008, when she was arrested after a traffic violation and taken to jail. ICE was notified and deportation proceedings started against her.
The specter of deportation, Violeta said, still concerns the couple and they don’t know what action they’d take if a deportation was ordered against Sujey.
“We try not to look at that as an option,” Violeta said. “I don’t know what I would do. We don’t look at that as an option, we need to fight for this. It all goes back to DOMA. So, no, not an option.”
But the new guidance would only affect gay foreign nationals who are currently facing deportation proceedings. Gay foreign nationals in same-sex relationships who are seeking legal status and protections, but haven’t yet had deportation proceedings started against them, aren’t affected the Obama administration’s change.
One such bi-national same-sex couple is Bradford Wells, a U.S. citizen, and Anthony John Makk, an Australian national. The San Francisco couple were married in Massachusetts seven years ago and have lived together 19 years. Wells and Makk came into public view earlier this month after the San Francisco Chronicle profiled them and reported that U.S. Customs & Immigration Enforcement on July 26 denied Makk a marriage-based green card for residency on the basis of the Defense of Marriage Act.
Makk is the primary caregiver for Wells, who’s living with AIDS. Wells told the Blade he’d be faced with significant challenges in continuing to care for himself should the U.S. government order deportation of his spouse.
“If he was deported, I’d be here all alone, I wouldn’t have anyone to assist me,” Wells said. “I would find it impossible to take care of all the things I would need to take care of to manage my day-to-day life. I would not be able to do everything I have to do.”
Steve Ralls, a spokesperson for Immigration Equality, which is handing Wells and Makk’s case, said their story underscores the fact that same-sex immigrant families need earlier intervention and a more permanent solution to put them on equal legal footing with opposite-sex couples.
“While the administration’s decision to intervene and halt deportation proceedings is a welcome step in the right direction, our government should not be forcing couples to face a worst-case scenario in order to receive even minimal relief,” Ralls said.
To ensure greater protection, Ralls said the Obama administration should implement a policy of holding spousal applications for married bi-national same-sex couples until either the courts or Congress lift DOMA from the books.
“That allows more families to maintain legal status, and legal protections, which is a far better option than waiting until deportation orders are issued and families have been forced out of status,” Ralls said. “The administration has offered to loosen the noose in a last-minute reprieve for some families. Instead, they should be stepping up, and offering help, before families are faced with such dire circumstances.”
Immigration Equality on Wednesday appealed the denial of the marriage-based green card to U.S. Citizenship & Immigration Services. The appeal gives him no legal status while pending, but if granted, would then place him back in legal status. Ralls said an attempt to remove him while the appeal is pending would be unusual because a successful appeal would permit him to remain in the United States legally.
Even though the policy change wouldn’t directly impact the San Francisco couple, Wells said he thinks the more rigorous attention that bi-national same-sex couples would receive under the case-by-case examination of deportation proceedings makes him feel “there could be hope at the very end of the road.”
“There is a possibility that if we find ourselves at the very end of the road that he may get deferred action and they won’t actually put him on a plane and fly him back to Australia, but we’re not there yet and I’m trying to get some relief before we get there,” Wells said.
NOTE: This article has been updated.
U.S. Supreme Court
Competing rallies draw hundreds to Supreme Court
Activists, politicians gather during oral arguments over trans youth participation in sports
Hundreds of supporters and opponents of trans rights gathered outside of the United States Supreme Court during oral arguments for Little v. Hecox and West Virginia v. B.P.J. on Tuesday. Two competing rallies were held next to each other, with politicians and opposing movement leaders at each.
“Trans rights are human rights!” proclaimed U.S. Sen. Ed Markey (D-Mass.) to the crowd of LGBTQ rights supporters. “I am here today because trans kids deserve more than to be debated on cable news. They deserve joy. They deserve support. They deserve to grow up knowing that their country has their back.”
“And I am here today because we have been down this hateful road before,” Markey continued. “We have seen time and time again what happens when the courts are asked to uphold discrimination. History eventually corrects those mistakes, but only after the real harm is done to human beings.”
View on Threads
U.S. Education Secretary Linda McMahon spoke at the other podium set up a few feet away surrounded by signs, “Two Sexes. One Truth.” and “Reality Matters. Biology Matters.”
“In just four years, the Biden administration reversed decades of progress,” said McMahon. “twisting the law to urge that sex is not defined by objective biological reality, but by subjective notion of gender identity. We’ve seen the consequences of the Biden administration’s advocacy of transgender agendas.”
U.S. Rep. Mark Takano (D-Calif.), chair of the Congressional Equality Caucus, was introduced on the opposing podium during McMahon’s remarks.
“This court, whose building that we stand before this morning, did something quite remarkable six years ago.” Takano said. “It did the humanely decent thing, and legally correct thing. In the Bostock decision, the Supreme Court said that trans employees exist. It said that trans employees matter. It said that Title VII of the Civil Rights Act protects employees from discrimination based on sex, and that discrimination based on sex includes discrimination based on gender identity and sexual orientation. It recognizes that trans people have workplace rights and that their livelihoods cannot be denied to them, because of who they are as trans people.”
“Today, we ask this court to be consistent,” Takano continued. “If trans employees exist, surely trans teenagers exist. If trans teenagers exist, surely trans children exist. If trans employees have a right not to be discriminated against in the workplace, trans kids have a right to a free and equal education in school.”
Takano then turned and pointed his finger toward McMahon.
“Did you hear that, Secretary McMahon?” Takano addressed McMahon. “Trans kids have a right to a free and equal education! Restore the Office of Civil Rights! Did you hear me Secretary McMahon? You will not speak louder or speak over me or over these people.”
Both politicians continued their remarks from opposing podiums.
“I end with a message to trans youth who need to know that there are adults who reject the political weaponization of hate and bigotry,” Takano said. “To you, I say: you matter. You are not alone. Discrimination has no place in our schools. It has no place in our laws, and it has no place in America.”
U.S. Supreme Court
Supreme Court hears arguments in two critical cases on trans sports bans
Justices considered whether laws unconstitutional under Title IX.
The Supreme Court heard two cases today that could change how the Equal Protection Clause and Title IX are enforced.
The cases, Little v. Hecox and West Virginia v. B.P.J., ask the court to determine whether state laws blocking transgender girls from participating on girls’ teams at publicly funded schools violates the 14th Amendment’s Equal Protection Clause and Title IX. Once decided, the rulings could reshape how laws addressing sex discrimination are interpreted nationwide.
Chief Justice John Roberts raised questions about whether Bostock v. Clayton County — the landmark case holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity — applies in the context of athletics. He questioned whether transgender girls should be considered girls under the law, noting that they were assigned male at birth.
“I think the basic focus of the discussion up until now, which is, as I see it anyway, whether or not we should view your position as a challenge to the distinction between boys and girls on the basis of sex or whether or not you are perfectly comfortable with the distinction between boys and girls, you just want an exception to the biological definition of girls.”
“How we approach the situation of looking at it not as boys versus girls but whether or not there should be an exception with respect to the definition of girls,” Roberts added, suggesting the implications could extend beyond athletics. “That would — if we adopted that, that would have to apply across the board and not simply to the area of athletics.”
Justice Clarence Thomas echoed Roberts’ concerns, questioning how sex-based classifications function under Title IX and what would happen if Idaho’s ban were struck down.
“Does a — the justification for a classification as you have in Title IX, male/female sports, let’s take, for example, an individual male who is not a good athlete, say, a lousy tennis player, and does not make the women’s — and wants to try out for the women’s tennis team, and he said there is no way I’m better than the women’s tennis players. How is that different from what you’re being required to do here?”
Justice Samuel Alito addressed what many in the courtroom seemed reluctant to state directly: the legal definition of sex.
“Under Title IX, what does the term ‘sex’ mean?” Alito asked Principal Deputy Solicitor General Hashim Mooppan, who was arguing in support of Idaho’s law. Mooppan maintained that sex should be defined at birth.
“We think it’s properly interpreted pursuant to its ordinary traditional definition of biological sex and think probably given the time it was enacted, reproductive biology is probably the best way of understanding that,” Mooppan said.
Justice Sonia Sotomayor pushed back, questioning how that definition did not amount to sex discrimination against Lindsay Hecox under Idaho law. If Hecox’s sex is legally defined as male, Sotomayor argued, the exclusion still creates discrimination.
“It’s still an exception,” Sotomayor said. “It’s a subclass of people who are covered by the law and others are not.”
Justice Elena Kagan highlighted the broader implications of the cases, asking whether a ruling for the states would impose a single definition of sex on the 23 states that currently have different laws and standards. The parties acknowledged that scientific research does not yet offer a clear consensus on sex.
“I think the one thing we definitely want to have is complete findings. So that’s why we really were urging to have a full record developed before there were a final judgment of scientific uncertainty,” said Kathleen Harnett, Hecox’s legal representative. “Maybe on a later record, that would come out differently — but I don’t think that—”
“Just play it out a little bit, if there were scientific uncertainty,” Kagan responded.
Justice Brett Kavanaugh focused on the impact such policies could have on cisgender girls, arguing that allowing transgender girls to compete could undermine Title IX’s original purpose.
“For the individual girl who does not make the team or doesn’t get on the stand for the medal or doesn’t make all league, there’s a — there’s a harm there,” Kavanaugh said. “I think we can’t sweep that aside.”
Justice Amy Coney Barrett questioned whether Idaho’s law discriminated based on transgender status or sex.
“Since trans boys can play on boys’ teams, how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?”
Harnett responded, “I think that might be relevant to a, for example, animus point, right, that we’re not a complete exclusion of transgender people. There was an exclusion of transgender women.”
Justice Ketanji Brown Jackson challenged the notion that explicitly excluding transgender people was not discrimination.
“I guess I’m struggling to understand how you can say that this law doesn’t discriminate on the basis of transgender status. The law expressly aims to ensure that transgender women can’t play on women’s sports teams… it treats transgender women different than — than cis-women, doesn’t it?”
Idaho Solicitor General Alan Hurst urged the court to uphold his state’s ban, arguing that allowing participation based on gender identity — regardless of medical intervention — would deny opportunities to girls protected under federal law.
Hurst emphasized that biological “sex is what matters in sports,” not gender identity, citing scientific evidence that people assigned male at birth are predisposed to athletic advantages.
Joshua Block, representing B.P.J., was asked whether a ruling in their favor would redefine sex under federal law.
“I don’t think the purpose of Title IX is to have an accurate definition of sex,” Block said. “I think the purpose is to make sure sex isn’t being used to deny opportunities.”
Becky Pepper-Jackson, identified as plaintiff B.P.J., the 15-year-old also spoke out.
“I play for my school for the same reason other kids on my track team do — to make friends, have fun, and challenge myself through practice and teamwork,” said Pepper-Jackson. “And all I’ve ever wanted was the same opportunities as my peers. But in 2021, politicians in my state passed a law banning me — the only transgender student athlete in the entire state — from playing as who I really am. This is unfair to me and every transgender kid who just wants the freedom to be themselves.”
Outside the court, advocates echoed those concerns as the justices deliberated.
“Becky simply wants to be with her teammates on the track and field team, to experience the camaraderie and many documented benefits of participating in team sports,” said Sasha Buchert, counsel and Nonbinary & Transgender Rights Project director at Lambda Legal. “It has been amply proven that participating in team sports equips youth with a myriad of skills — in leadership, teamwork, confidence, and health. On the other hand, denying a student the ability to participate is not only discriminatory but harmful to a student’s self-esteem, sending a message that they are not good enough and deserve to be excluded. That is the argument we made today and that we hope resonated with the justices of the Supreme Court.”
“This case is about the ability of transgender youth like Becky to participate in our schools and communities,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project. “School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety. As the lower court recognized, forcing Becky to either give up sports or play on the boys’ team — in contradiction of who she is at school, at home, and across her life — is really no choice at all. We are glad to stand with her and her family to defend her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.”
The Supreme Court is expected to issue rulings in both cases by the end of June.
U.S. Supreme Court
As Supreme Court weighs trans sports bans, advocate and former athlete speaks out
PFLAG staffer Diego Sanchez competed at University of Georgia in 1970s
The U.S. Supreme Court will hear two cases Tuesday addressing the legality of banning transgender women and girls from participating in sports under the 14th Amendment.
Though the two cases differ slightly in their fact patterns, they ultimately pose the same constitutional question: whether laws that limit participation in women’s sports to only cisgender women and girls violate the Equal Protection Clause of the 14th Amendment.
In both cases — Little v. Hecox and West Virginia v. B.P.J. — trans girls filed lawsuits against their respective states, Idaho and West Virginia, arguing that the bans violate their right to equal protection under the law by subjecting them to different standards than cisgender girls.
Lindsay Hecox, now 24, filed her lawsuit in 2020 while attending Boise State University. That same year, Idaho enacted the “Fairness in Women’s Sports Act,” which barred trans women from participating in any sport in public schools, from kindergarten through college. Although Hecox underwent hormone therapy that significantly lowered her testosterone levels, she was still excluded under the law when she attempted to try out for the women’s track and cross-country teams.
The second case centers on B.P.J., a 15-year-old trans girl who has identified as female since third grade and has been on puberty blockers since the onset of puberty. In 2021, West Virginia enacted the “Save Women’s Sports Act,” which requires sports teams to be designated by “biological sex” rather than gender identity. B.P.J.’s mother filed suit on her behalf after her daughter was barred from participating on her school’s girls’ cross-country and track teams.
A key distinction between the two cases is that attorneys for B.P.J. have argued that because puberty blockers were part of her development, her body is more aligned with that of a cisgender girl than a cisgender boy. Despite these differences, both cases raise the same constitutional issue: whether it is lawful to bar someone from participation in sports based on sex assigned at birth.
The Washington Blade spoke with PFLAG Vice President of Policy and Government Affairs Diego Sanchez.
Sanchez is a trans elder with firsthand experience as a college athlete at the University of Georgia and later became the first openly trans legislative staff member on Capitol Hill.
His dual experience — as a former athlete and a longtime policy expert deeply familiar with constitutional law — gives him a unique perspective on the questions now before the Supreme Court. Sanchez will also be one of the featured speakers at a rally on the steps of the court as the justices hear arguments.
When asked how attitudes toward trans athletes differ from when he competed at the University of Georgia from 1976-1980 to today — when 27 states have passed laws restricting trans participation in sports — Sanchez said the contrast is stark.
“I had the good experience of being supported by my teammates and my coach,” Sanchez said. “The thing that’s so different today is that these [trans] kids are able to go home and get kisses and hugs from their parents, being lauded in the stands by their families, and then being told that who they are doesn’t necessarily fit with who they’re allowed to be in their expression at the moment, and that to me, seems a terrible injustice.”
Sanchez emphasized that sports offer lessons that extend far beyond competition.
“When you’re an athlete, you learn an awful lot of things about life,” he said. “You learn about leadership, but you also learn that your best effort becomes part of a team effort … how you feel as an individual contributor is affected by what ends up being part of how you live your life as an adult.”
After his time as an athlete, Sanchez began working in government, eventually serving as senior policy advisor to then-U.S. Rep. Barney Frank (D-Mass.) until Frank’s retirement in 2013. Sanchez said that one of the most important aspects of his role was simply being visible as a trans person in spaces where many lawmakers had never knowingly met one before.
“My job was to make sure that no one, no legislator, could say that they had never met a trans person,” Sanchez said.
Sanchez also addressed the broader implications the Supreme Court’s decision could have on how gender is treated within institutional systems.
“I don’t think it affects how people perceive their own gender or express their own gender, but I do think that it could create barriers if it doesn’t welcome the way that community and society actually are,” he said. “The most important thing for people to know … is to remember that every person is an individual, and that the right to contribute to society should be something that is supported by the government, not hindered.”
He added that the court’s role must be understood within the framework of checks and balances established by the Constitution.
“The risk, of course, here is always remembering that we have three branches of government, so that this action by the judiciary branch may or may not have implications on whether or how things can be perceived or executed at other branches,” Sanchez said. “I would hope that our government is interested in letting the future generations and current generations be the best that they can be as well.”
“Do people get to live their lives as they are, or is the government an obstruction or a support?”
When asked what message he would share with young trans athletes watching the Supreme Court take up these cases, Sanchez said community support remains critical, regardless of how the justices rule.
“Make sure that the environment that you put yourself in is something that honors who you know you are and supports you becoming the best person you can be, and that anything that takes away from that is purely dissonance,” he said.
“What we do with dissonance is what distinguishes us as whether we excel or doubt.”
That same sense of community, Sanchez said, is what rallies — like the one planned outside the Supreme Court — are meant to reinforce, even as decisions are made inside the building.
“Rallies, including tomorrow’s, are about people knowing they’re not alone, and hearing from other people who support who they are,” he said. “There is support across the country … I wish that I had had someone my age now that I could have looked to, but I am the role model, but I didn’t have any.”
Looking ahead to the possibility that the court could uphold bans on trans athletes, Sanchez said the immediate challenge will be ensuring that families and communities continue to affirm trans youth amid legal uncertainty.
“Having the endorsement of being supported who you are, it helps you so much,” he said. “You cannot put the issue of rights back into the genie’s bottle once people experience what freedom and welcoming is.”
For Sanchez, whose life has spanned decades of change in both sports and government, the cases before the Supreme Court represent a pivotal moment — not just legally, but culturally.
“Living your life, for me, does not require bravery,” he said. “It’s just taking one step and then another.”
Grenell: ‘Real hope’ for gay rights in Iran as result of nationwide protests
Rollback of health IT standards will harm LGBTQ patients
Mark Levine loses race to succeed Adam Ebbin in ‘firehouse’ Democratic primary
National LGBTQ Task Force brings Creating Change conference back to D.C.
Van Hollen speaks at ‘ICE Out for Good’ protest in D.C.
Hundreds protest ICE killing of Renee Nicole Good in D.C.
PHOTOS: ‘ICE Out For Good’
A Shakespearean tragedy comes to life in exquisite ‘Hamnet’
Calendar: January 9-15
