Trump Administration Opens the Door for ICE to Target Anyone Suspected of Being Trans

Under a new rule, the State Department will be able to revoke trans people's visas over "misrepresentation." It'll give ICE grounds to suspect all trans people of being in the US illegally.

The Immigrations and Customs Enforcement Building in Washington DC | Image: Wikimedia Commons

Yesterday, the Trump administration finalized a new rule titled “Enhancing Vetting and Combatting Fraud in the Diversity Immigrant Visa Program.” For those unfamiliar, the Diversity Visa Program, commonly known as the “green card lottery,” is a program set up by the Department of State that annually awards green cards to around 55,000 applicants—randomly selected from a pool of 20,000,000+—from all but a few countries with large immigrant populations already in the US.

Under this rule, the State Department will now require applicants to the program to indicate their “biological sex at birth” during all stages of the process, “even if that differs from the sex listed on the applicant’s foreign passport or other identifying documentation.” As if that wasn’t enough, the rule concurrently mandates that all applicants submit their passport information and a scan of their passport’s biographic page with the aim of “combatting fraud.”

Here, the State Department will be effectively forcing a mismatch between trans people’s applications and their passports—something it can then use to declare their applications fraudulent and disqualify them entirely. Furthermore, if it finds out that a person is trans and didn’t fill out the form using their “biological sex at birth,” it will also be able to declare their application fraudulent, even after they’ve entered the country. But it gets worse: while this rule supposedly only applies to the green card lottery, in its response to public comments about the new gender requirements, the State Department went even further. In fact, according to the department, this “biological sex at birth” requirement now applies to all visa applications.

The State Department’s new policy

This is where the policy starts to get concerning. Under 8 U.S.C. § 1182(a)(6)(C)(i), a foreigner who is found to have obtained a visa either “by fraud or willfully misrepresenting a material fact” will have their visa revoked and face deportation. Although the term ‘material fact’ should only apply to facts that influence the visa decision—which sex isn’t, at least in theory—the State Department has chosen to interpret this phrase a bit differently. As per 9 FAM 302.9-4(B)(5), a section of the Foreign Affairs Manual that contains all public State Department policies, “misrepresenting a material fact” includes instances when an applicant “provides a fake birth certificate in support of an Immigrant Visa application.”

While what constitutes a “fake birth certificate” is currently a mystery, the Trump administration’s previous actions can provide a clue. Already, Trump has directed the federal government to not recognize legally issued birth certificates in two cases: birthright citizenship and trans people. For the former, Trump issued Executive Order 14160, stipulating that birth certificates issued by states—which states have sole jurisdiction over—to children of undocumented immigrants or tourists will not be recognized. When it comes to trans people, the State Department does not recognize any gender marker amendments on birth certificates—even for foreign births—when issuing passports. As these examples show, Trump refusing to recognize trans immigrants’ birth certificates isn’t just within the realm of possibility—it’s something he’s done before.

Furthermore, the Trump administration has explicitly designated “misrepresentation of sex” as grounds for ineligibility in some circumstances. According to State Department guidance released shortly after Trump signed the executive order targeting trans athletes in February 2025, trans people’s visas will be denied if they are “traveling to the United States for an athletic competition.” Given that this has been enforced for over a year despite having no constitutional or legal basis of any kind, it stands to reason that the Trump administration will be able to expand it fairly easily.

Worse, even for green card holders, these accusations of misrepresentation can be brought up to five years after they were first granted permanent residence in the United States. If the attorney general or an immigration judge finds that an immigrant did indeed misrepresent themselves, their status will be revoked, and they will likely face deportation. Moreover, these same grounds can also be used to initiate denaturalization proceedings against naturalized citizens, but the burden of proof is higher in those cases.

And this isn’t even the biggest threat—ICE is. In general, ICE agents have significant leeway to assert that any person could potentially be an immigrant and search them. The factors that lead ICE to make that conclusion involve traits they claim are disproportionately prevalent among migrants—most notably their race, language, and workplace. Last year, the Supreme Court ruled that ICE officers could utilize racial profiling, as well as these other factors, in order to conduct immigration stops.

According to Kavanaugh’s concurrence in that decision, this rationale extends to any “reasonable suspicion, based on specific articulable facts, that the person being questioned…is an alien illegally in the United States.” As such, ICE was effectively also permitted to use the fact that someone ‘looks’ trans—regardless of whether or not they actually are—as the “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.

Now, the Trump administration has given ICE the reason it needs. Under this rule, ICE agents now have the enforcement rationale to assert that trans people—especially those belonging to racial minority groups—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.” Like the other factors ICE uses, this will burden both citizens and non-citizens, as ICE cannot reliably determine whether or not a person is a citizen without physically checking their documents.

Thus, ICE will be free to scrutinize trans people’s documents and detain those whose documents show any inconsistencies—where they face a heightened risk of sexual violence now that ICE has removed the protections for trans people in its custody and additionally have their medications withheld. Given that Kansas has left its trans residents with no way to identify themselves after it revoked their documents, this also has the potential to burden the state’s trans community with another devastating repercussion of the extreme law.

This rule, ostensibly about the green card lottery, demonstrates that trans people can face severe consequences from all anti-trans actions—even something as seemingly insignificant as a policy regulating gender markers on visa forms. How deep those consequences run is entirely up to the State Department and ICE, both of which have demonstrated a willingness to enforce Trump’s political prerogatives by any means necessary.

Because starting today, all trans non-citizens—permanent residents, undocumented immigrants, international students, H-1B workers, and tourists—currently present in the United States are effectively at Trump’s mercy. They can only hope he doesn’t pull the trigger.