An Important Ruling for Transgender Rights

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

In a significant decision Thursday, a three-judge panel in the Ninth Circuit Court of Appeals ruled that courts must weigh “unique threats and vulnerabilities” to the transgender community during asylum proceedings. The decision emphasized the distinction between sexual orientation and gender identity when considering whether a transgender person could face persecution or torture if deported.

In Avendano-Hernandez v. Lynch, the court considered whether Erin Avendano-Hernandez, a transgender woman and Mexican national, should be granted asylum in the United States.

In her home country, the judges noted, Avendano-Hernandez faced physical and sexual abuse from members of her own family because of her sexual identity. She entered the U.S. illegally in 2000 and began transitioning with hormone therapy soon thereafter. After being deported back to Mexico in 2007 for driving under the influence, she was detained and raped by Mexican police officers. She immediately fled the country and re-crossed the U.S. border.

Three years later, Avendano-Hernandez was arrested and slated again for deportation by an immigration judge. The UN Convention against Torture, which the U.S. ratified in 1994, prohibits deporting a person to a country where they are likely to be tortured. But the immigration judge ruled that recent gay-rights legislation in Mexico made further torture unlikely.

In its ruling, the Ninth Circuit criticized both the immigration judge’s decision and the Board of Immigration Appeals that reviewed it for insufficient consideration of transgender issues:

The IJ failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered Avendano-Hernandez to be “still male,” even though Avendano-Hernandez dresses as a woman, takes female hormones, and has identified as woman for over a decade. Although the BIA correctly used female pronouns for Avendano-Hernandez, it wrongly adopted the IJ’s analysis, which conflated transgender identity and sexual orientation.

Since Avendano-Hernandez first entered the U.S., Mexico has passed an anti-discrimination law and legalized same-sex marriage. But the court noted that these social advances don’t necessarily apply to transgender people, who face distinct challenges.

“Indeed, Mexico has one of the highest documented number of transgender murders in the world,” Judge Jacqueline Nguyen wrote for the court. “Avendano-Hernandez’s experiences reflect how transgender persons are caught in the crosshairs of both generalized homophobia and transgender-specific violence and discrimination.”

The panel's decision sets a precedent throughout the entire Ninth Circuit, which includes California and Arizona, two major immigration hubs.