On March 31, 2024, U.S. Citizenship and Immigration Services (USCIS) implemented a policy update that limits gender marker selections on all immigration forms and systems to two biological sexes: male and female. This change eliminates the option for applicants to select a non-binary or "X" gender marker—an option that had previously been permitted on some forms.
While USCIS emphasizes that this update does not change who qualifies for immigration benefits, it may significantly impact how certain applications—particularly asylum claims based on gender identity-related persecution—are understood and evaluated.
What Has Changed?
Under the revised policy, applicants may now only choose "Male" or "Female" when completing USCIS forms. The ability to select a non-binary or third-gender option is no longer available.
Applicants may still request to change their gender marker with USCIS, but only within the male/female binary. Supporting documentation, such as medical or legal records, is not required to make the change. This means that transgender individuals can still align their gender marker with their identity—if it falls within the two binary categories—but non-binary individuals are no longer represented.
The change follows guidance issued by the federal Office of Management and Budget (OMB), which called for greater consistency in the collection of sex and gender data across federal agencies.
Impact on Asylum Applicants
This policy update is especially important for individuals applying for asylum based on persecution related to their gender identity. Under U.S. immigration law, asylum is available to people who have suffered persecution—or fear future persecution—based on their membership in a "particular social group." This includes people targeted for being transgender, gender non-conforming, or otherwise not aligning with socially expected gender roles in their home country.
Although the legal standard for asylum remains unchanged, the removal of the non-binary gender marker could make it harder for some applicants to clearly present and document their identity. In asylum cases, credibility and clarity are crucial. The ability to accurately reflect one's gender identity on official forms can play an important role in establishing the foundation of a persecution claim.
Now, applicants who identify as non-binary or outside the traditional male/female categories may be forced to select a gender that does not align with their lived experience. This could lead to confusion in their case file or require additional explanation during interviews or hearings. This policy could weaken the strength of some asylum claims—not because the underlying facts have changed, but because the official forms now fail to reflect the applicant's true identity.
For example:
- A non-binary person applying for asylum after being targeted in their home country may now have to select "Male" or "Female" on their asylum application, despite not identifying as either.
- This mismatch may lead adjudicators to question the applicant's identity, possibly weakening the strength of the claim or requiring added clarification and documentation.
- In defensive asylum cases—where applicants are in removal proceedings—such inconsistencies could create unnecessary hurdles and complicate the evidentiary presentation.
What Can Applicants Do?
Despite the change, individuals can still pursue asylum based on gender identity. The underlying eligibility criteria remain the same. However, applicants should be prepared to clearly explain any differences between their stated identity and the gender marker required on USCIS forms.
Applicants are encouraged to:
- Include a personal declaration explaining their gender identity in detail and how it relates to their fear of persecution.
- Provide evidence such as affidavits, country condition reports, or expert testimony that supports the claim.
- Work with an experienced immigration attorney who can help present the claim effectively and prepare for any questions that might arise from the new form limitations.
The new USCIS policy on gender markers may seem like a technical update, but for asylum seekers fleeing gender-based persecution, it has real implications. While individuals are still legally eligible to seek protection, the limitation to binary gender options could make it more difficult to fully and clearly present their case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
