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White House rule would require asylum seekers to seek protection in 3rd country

Immigration Equality sharply criticized Biden-Harris administration proposal

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President Joe Biden and Vice President Kamala Harris at the White House on Dec. 13, 2022. (Washington Blade photo by Michael Key)

Groups that advocate on behalf of LGBTQ and intersex immigrants have sharply criticized the Biden-Harris administration over its plans to prohibit people from asking for asylum at the Southern border if they don’t seek protection in a country through which they passed.

“The proposed rule would encourage migrants to avail themselves of lawful, safe and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain,” reads the proposed rule the White House announced on Tuesday. “It would do so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.”

The Associated Press notes the proposed rule must go through a 30-day public comment period before it can take effect. The regulation would remain in place for two years if the administration implements it.

ā€œThe presidentā€™s proposed rule will deny asylum to thousands of otherwise eligible refugees, many of whom will be LGBTQ people,” said Immigration Equality Executive Director Aaron C. Morris in a press release his organization released on Wednesday. “The rule puts into place impossible hurdles that people fleeing persecution will never be able to overcome. Additionally, a requirement that LGBTQ people apply for asylum in other countries before coming to the U.S. is misguided and blatantly contrary to federal law. Many common transit countries are extremely dangerous for LGBTQ asylum seekers, who face brutal violence, sexual assault, and murder as they flee to the U.S. for safety.”

Erin Argueta, senior lead attorney for the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative, in a statement said it is “beyond disappointing that the Biden administration is moving forward with an anti-asylum policy that is copied from the cruel transit ban issued by the Trump administration.” 

“The Biden administration should not continue putting obstacles in the way of people fleeing danger and seeking safety in the United States, which will only increase harm,” said Argueta. “Instead, this administration should be strengthening the legal right to seek asylum at the U.S. border, not proposing an unworkable alternative that will only increase harm.”

The White House last month announced the expansion of the use of “expedited removal” of Cubans, Nicaraguans, Haitians and Venezuelans who enter the U.S. from Mexico without legal authorization. The Biden-Harris administration also created a humanitarian parole program for Cubans, Haitians and Nicaraguans that combines ā€œsafe, orderly and lawful pathways to the United States, including authorization to work, with significant consequences for those who fail to use those pathways.ā€

The U.S., as part of the aforementioned announcement, launched a U.S. Customs and Border Protection app that allows Cubans, Haitians and Nicaraguans to “seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for temporary grant of parole for up to two years, including employment authorization” if they pass security screenings and someone in the U.S. sponsors them. The Biden administration also allows up to 30,000 “qualifying nationals” from Cuba, Nicaragua, Haiti and Venezuela to live and work in the U.S. for up to two years.

The rule the White House has proposed would require most asylum seekers to use the app to schedule an initial appointment at a port of entry.

Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the pandemic, took effect in March 2020. 

It is expected to end in May when the COVID-19 public health emergency ends. The Associated Press reported the proposed rule the Biden administration announced on Tuesday would take effect at that time.

“The president must undo his predecessorā€™s anti-asylum policies, not expand on them. LGBTQ asylum seekers deserve a system that is equitable and accessible,” said Morris. “Their lives depend on it. The rule as proposed will almost certainly result in the senseless death of LGBTQ refugees, most of whom would otherwise find safety through asylum in the United States.ā€

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The White House

USCIS announces it now only recognizes ‘two biological sexes’

Immigration agency announced it has implemented Trump executive order

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An American flag flies in front of a privately-run U.S. Immigration and Customs Enforcement detention center in the Southeast U.S. on July 31, 2020. U.S. Citizenship and Immigration Services has announced it now only recognizes "two biological genders, male and female." (Washington Blade photo by Yariel ValdƩs GonzƔlez)

U.S. Citizenship and Immigration Services on Wednesday announced it now only “recognizes two biological sexes, male and female.”

A press release notes this change to its policies is “consistent with” the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” executive order that President Donald Trump signed shortly after he took office for the second time on Jan. 20.

ā€œThere are only two sexes ā€” male and female,ā€ said DHS spokesperson Tricia McLaughlin in a statement. “President Trump promised the American people a revolution of common sense, and that includes making sure that the policy of the U.S. government agrees with simple biological reality.”

“Proper management of our immigration system is a matter of national security, not a place to promote and coddle an ideology that permanently harms children and robs real women of their dignity, safety, and well-being,ā€ she added.

The press release notes USCIS “considers a personā€™s sex as that which is generally evidenced on the birth certificate issued at or nearest to the time of birth.”

“If the birth certificate issued at or nearest to the time of birth indicates a sex other than male or female, USCIS will base the determination of sex on secondary evidence,” it reads.

The USCIS Policy Manuel defines “secondary evidence” as “evidence that may demonstrate a fact is more likely than not true, but the evidence does not derive from a primary, authoritative source.”

“Records maintained by religious or faith-based organizations showing that a person was divorced at a certain time are an example of secondary evidence of the divorce,” it says.

USCIS in its press release notes it “will not deny benefits solely because the benefit requestor did not properly indicate his or her sex.”

ā€œThis is a cruel and unnecessary policy that puts transgender, nonbinary, and intersex immigrants in danger,” said Immigration Equality Law and Policy Director Bridget Crawford on Wednesday. “The U.S. government is now forcing people to carry identity documents that do not reflect who they are, opening them up to increased discrimination, harassment, and violence. This policy does not just impact individuals ā€” it affects their ability to travel, work, access healthcare, and live their lives authentically.” Ā 

“By denying trans people the right to self-select their gender, the government is making it harder for them to exist safely and with dignity,” added Crawford. “This is not about ā€˜common senseā€™ā€”it is about erasing an entire community from the legal landscape. Transgender, nonbinary, and intersex people have always existed, and they deserve to have their identities fully recognized and respected. We will continue to fight for the rights of our clients and for the reversal of this discriminatory policy.ā€Ā 

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The White House

Trump threatens Maine’s Democratic governor over trans athlete ban

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President Donald Trump (Washington Blade photo by Michael Key)

President Donald Trump threatened to withhold federal funding from Maine after the state’s Democratic Gov. Janet Mills refused to say that she would enforce his administration’s ban on transgender women and girls competing in sports.

Their brief but heated exchange during a meeting of the National Governors Association at the White House on Friday kicked off when Mills agreed only to abide by “state and federal law” and Trump told her, ā€œWe are the federal law. You better do it because youā€™re not going to get any federal funding if you don’t.”

“See you in court,” Mills responded.

ā€œGood,” Trump agreed, “I’ll see you in court. I look forward to that. That should be a real easy one. And enjoy your life after governor, because I don’t think you’ll be in elected politics.”

Two days after Trump’s issuance of the executive order”Keeping Men Out of Women’s Sports” on Feb. 5, the governing body responsible for overseeing high school sports in Maine said trans athletes would still be allowed to compete because the ban was in conflict with provisions of the Maine state Human Rights Act.

The president previewed his proposal to condition federal funding on states’ compliance with the policy during a meeting on Thursday of the Republican Governors Association.

Earlier on Friday, Mills vowed in a statement that ā€œIf the President attempts to unilaterally deprive Maine school children from the benefit of Federal funding, my Administration and the Attorney General will take appropriate and necessary legal action to restore that funding and the academic opportunity it provides.”

Echoing her comments, the state’s Democratic Attorney General Aaron Frey said in a statement Friday morning that “Any attempt by the President to cut federal funding in Maine unless transgender athletes are restricted from playing sports would be illegal and in direct violation of court orders.”

ā€œFortunately, though, the rule of law still applies in this country, and I will do everything in my power to defend Maineā€™s laws and block efforts by the President to bully and threaten us,” he said.

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Trump bars trans women and girls from sports

The administration reversed course on the Biden-Harris policy on Title IX

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President Donald Trump (Washington Blade photo by Michael Key)

President Donald Trump on Wednesday issued another executive order taking aim at the transgender community, this time focusing on eligibility for sports participation.

In a signing ceremony for ā€œKeeping Men Out of Womenā€™s Sports” in the East Room of the White House, the president proclaimed “With this executive order, the war on womenā€™s sports is over.”

Despite the insistence by Trump and Republicans that trans women and girls have a biological advantage in sports over cisgender women and girls, the research has been inconclusive, at best.

A study in the peer reviewed Sports Medicine journal found ā€œno direct or consistent researchā€ pointing to this conclusion. A different review in 2023 found that post-pubertal differences are ā€œreduced, if not erased, over time by gender affirming hormone therapy.ā€

Other critics of efforts to exclude trans student athletes have pointed to the small number of people who are impacted. Charlie Baker, president of the National Collegiate Athletic Association, testified last year that fewer than 10 of the NCAA’s 522,000+ student athletes identify as trans.

The Trump-Vance administration has reversed course from the Biden-Harris administration’s policy on Title IX rules barring sex-based discrimination.

ā€œIf youā€™re going to have womenā€™s sports, if youā€™re going to provide opportunities for women, then they have to be equally safe, equally fair, and equally private opportunities, and so that means that youā€™re going to preserve womenā€™s sports for women,” a White House official said prior to the issuance of the order.

Former President Joe Biden’s Title IX rules, which went into effect last year, clarified that pursuant to the U.S. Supreme Court’s ruling in Bostock v. Clayton County (2020), sex-based discrimination includes that which is based on the victim’s sexual orientation or gender identity.

The White House official indicated that the administration will consider additional guidance, regulations, and interpretations of Title IX, as well as exploring options to handle noncompliance by threatening federal funding for schools and education programs.

White House Press Secretary Karoline Leavitt told reporters that Trump ā€œdoes expect the Olympic Committee and the NCAA to no longer allow men to compete in womenā€™s sports.ā€

One of the first legislative moves by the new Congress last month was House Republicans’ passage of the “Protection of Women and Girls in Sports Act,” which would ban trans women and girls from participating in competitive athletics.

The bill is now before the U.S. Senate, where Republicans have a three-seat majority but would need 60 votes to overcome the filibuster.

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