Donita Ganzon and Jiffy Javanella, the Los Angeles couple who filed a lawsuit last November against the Department of Homeland Security (DHS) for failing to recognize their marriage and denying Javanella his green card, recently won a reprieve. Ganzon received a letter from the agency stating that it is reconsidering its decision. From a practical standpoint, Javanella's deportation order is on hold. But Ganzon said she does not consider this development a step forward.
When the couple decided to contest the DHS's decision last July, they had to go public with Ganzon's transsexual identity, which the agency used as the basis for Javanella's denial. The agency refused to acknowledge his martial status based on the 1996 Defense of Marriage Act, which defines marriage for federal purposes as between a man and a woman. Ganzon, who was born in the Philippines, completed sex reassignment surgery in 1981 and became a naturalized citizen of the U.S. in 1986, is legally a woman. All of her papers confirm this – from her naturalization papers to her driver's license.
Ganzon, 58, and Javanella, 27, anticipated a court hearing on March 28, 2005, during which they would contest the motion filed by the U.S. Attorney's Office to dismiss the couple's lawsuit on the grounds it was filed in the wrong jurisdiction. That hearing has since been postponed, however, so the couple has decided to file an amended lawsuit. While the initial lawsuit sought to address wrongful denial of Javanella's green card, the amended lawsuit made the additional request for prompt action.
According to Philip Abramowitz, the couple's lawyer, "the motion to dismiss has been pushed back about sixty days." "Perhaps they want to delay my lawsuit so they could obtain a decision in a more conservative jurisdiction," he said.
A few months before Ganzon and Javanella applied for his green card, the U.S. Citizenship and Immigration Services (CIS), part of DHS, sent an interoffice memo outlining how personnel should handle requests by transsexuals. In the memo dated April 16, 2004, William Yates, associate director of operations, stated that "CIS personnel shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claims to be a transsexual, regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so."
Yates cited CIS's need to clarify federal law due to "differing state practices related to the issuance of new birth certificates and marriage licenses" and "inconsistent adjudications within the INS and CIS offices of cases involving transsexual applicants."
While the fate of their marriage remains in question, Ganzon and Javanella continue to live in turmoil. Although they still frequent karaoke bars, socialize with friends and family, and go for short walks around their tree-lined neighborhood, their lives have not been the same. Ganzon, on partial disability since 2002 from a work-related accident, complains often of back and shoulder pain, which she said is compounded by stress from the lawsuit. Javanella, according to Abramowitz, is now technically living in the country illegally. Javanella has reapplied for a work permit, but has yet to receive the status of his request.
"My privacy has been jeopardized," Ganzon said. "I live in fear. And my husband is in shame and in fear. He's always depressed. He's embarrassed because people might think he's gay. He's not gay; he's straight. He fell in love with me because I am a woman."
Other cases contesting DHS's immigration decisions based on transsexual identity have been filed before the U.S. Board of Appeals, but none have yet gone to federal court.
Ganzon and Javanella find themselves at the crosshairs of national debates on gay marriage and immigration laws. Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco, said, "It's one-hundred percent political – there's no doubt about that."
According to advocates, the Bush administration is trying to change existing laws that recognize marriage involving transsexuals. "Because of homophobia and visibility around gay couples seeking the right to marry, all of a sudden transsexual people are being targeted in very irrational and unfair ways," Minter said. He hopes the courts will uphold the existing laws on marriages involving transsexuals. The State of California recognizes such unions. "That's been the rule for many years, and there's no reason to change it now," he said.
For some, like Annie Sayo, assistant director of San Jose-based Embracing the Movement of Pinays and Queers, Ganzon's case also brings to light a growing trend in immigration policy. Green card applications are more likely to be denied if the request is from an individual who resided in a nation the DHS claims harbors terrorist groups – a nation like the Philippines. Sayo said she is working with organizations like the Gay & Lesbian Alliance Against Defamation to collect petitions pressing government officials to act on the couple's behalf.
For her part, Ganzon's priority remains clear. "We are filing a motion, because the superior court wants to dismiss our complaint," she said. "We want the court to grant the green card for my husband."