In a significant and progressive step forward, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) last month announced new guidance for adjudication of immigration benefits in cases involving transgendered persons, who are not per se subject to the Defense of Marriage Act.

In Interim Policy Memorandum PM-602-0061, effective immediately, USCIS announced that the agency will now presume the validity of marriages involving transgendered persons in absence of jurisdictional laws requiring otherwise. In an arguably more significant move, the agency will no longer require proof of sex reassignment surgery unless the law of the place of marriage would clearly require such a surgery to have taken place for marriage benefits to attach.Both developments are a welcome clarification in an area of immigration and family law where clarity was sorely lacking. Eligibility of benefits will no longer turn upon proving that a transgendered person underwent sexual reassignment surgery, but instead whether that person was married in a jurisdiction recognizing a change of sex for the purposes of its marriage laws.

The Specter of the Defense of Marriage Act

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