Trump’s transgender athlete order includes an immigration fraud penalty. Why?

With the 2028 Summer Olympics approaching, President Donald Trump plans to enforce a ban on transgender athletes from competing in women’s and girls’ sports — and he’s relying in part on a fraud-related immigration law.

Trump’s Feb. 5 order, in keeping with a campaign promise, primarily centers on school sports while also directing the secretaries of state and homeland security to revise policies that could permit U.S. entry to "males seeking to participate in women’s sports."

The order referred to section 212 of the Immigration and Nationality Act, which says a person seeking a visa or U.S. admission "by fraud or willfully misrepresenting a material fact" is inadmissible.

The order’s immigration piece could be an attempt to prevent foreign trans athletes from competing in the 2028 Summer Olympics in Los Angeles. During the 2024 games in Paris, social media users and politicians, including Trump, falsely claimed Algerian boxer Imane Khelif was a man competing in a woman's sport. Three transgender athletes participated in women’s sports in the most recent Olympics — two were U.S. athletes, and none was a transgender woman.

Numerous states have tried to make it harder for people to change their IDs to reflect their gender identity. But experts said the strategy of invoking fraud as a legal means of turning away transgender people is new.

We explored how the immigration law could be employed to block transgender athletes from entering the country. Experts told us it’s possible that Trump’s interpretation of this provision could expand beyond athletics to affect transgender immigrants more broadly.

The "inadmissible aliens" chapter of the Immigration and Nationality Act details various reasons a foreigner can be deemed ineligible for a visa or blocked from entering the country. It is not a criminal provision. 

One clause in Section 212 is normally used to exclude people who have presented false documents when seeking a visa or somehow lied to gain entry to the United States, said Susan Hazeldean, a Brooklyn Law School professor. 

Neither the text of the order nor the White House detailed how the statute would be employed. 

"It's not a fraud to say I'm coming in to participate in this volleyball tournament as a member of this team… that’s truthful," said Ava Benach, an immigration lawyer.

Legal experts told PolitiFact they expected the statute could be used to consider it "fraud" if a person presents ID documents or otherwise describes themselves to U.S. officials as a gender different from the gender they were assigned at birth.

Several news outlets, including CNN, NBC News and The Hill, credited an unnamed Trump administration official as telling reporters in a phone call prior to Trump signing the order that the order would trigger a "fraud" review of foreign athletes "claiming" to be women and seeking entry to the U.S. to compete in women’s sports.

Aaron Morris, the executive director of Immigration Equality, a non-profit supporting LGBTQ+ immigrants, said he had never seen this statute used to block transgender athletes’ entry into the U.S.

The order calls for the statute to be used in the context of athletics, but experts said it could create a broader legal precedent. 

"If the misrepresentation is a misrepresentation of gender, then it's a ban on trans people getting visas," Benach said, "but I don't believe it was that well thought out."

Many countries including Canada, Mexico, and many in Europe allow transgender adults to legally change their gender, including on passports; it’s unclear if legally issued documents could be considered fraudulent by U.S. officials under the immigration statute.

If the administration pursues a broader reading, "it is essentially creating a novel pathway to lawfully exclude any transgender immigrant on the grounds of their alleged deceptiveness," said Elana Redfield, federal policy director of the Williams Institute, an LGBTQ+ research center of UCLA’s law school.

The changes proposed in the order do not apply to U.S. citizens, but other changes have been made that affect transgender Americans who seek to travel.

Under the Biden administration, transgender adults were able to request the male/female portion of their passports be changed to align with their gender identity. The Trump administration’s State Department has stopped approving such gender marker changes and will no longer issue visas with the nonbinary marker "X;" it will recognize previously issued passports until they expire. 

Using an existing law to carry out Trump’s transgender athletes ban could make it easier for officials to enact this policy in a way that avoids rulemaking processes. 

"The executive has a lot of discretion around immigration enforcement," Hazeldean said. "So I think this is an area where it's easier for them to take these kinds of actions."

The strategy could also have downsides.

The statute, for example, refers to "willful misrepresentation." If a person discloses their transgender identity from the outset, it may be harder to convincingly argue that the "fraud" was "willful" or a misrepresentation.

Additionally, the statute pertains to misrepresentation of a "material" fact, which means immigration officials would have to prove that gender is relevant to a person’s visa eligibility. It could hamper enforcement beyond athletes.

Two New Hampshire teens sued the Trump administration over the section of the order that bans transgender girls from competing in school sports. A legal challenge to the immigration fraud provision would require someone to be harmed by the law — an athlete denied entry, for example.

"The stakes are pretty high and stacked against applicants here," Redfield said, and applicants may not have access to attorneys to explain these legal nuances.

Of the three trans athletes who competed at the last Olympics, all were nonbinary, meaning they do not identify as men or women. Only one was not a U.S. citizen. 

It could be difficult for a person to appeal a visa denial because federal courts could hesitate to take up the case. "Most visa denials occur at consulates outside of the U.S., and are generally deemed by federal courts to be nonreviewable for lack of jurisdiction," Morris said. 

There are exceptions, however, if the law is being implemented in a way that is unconstitutional, Morris said.

Transgender people are not unaccustomed to "fraud" accusations. Movies such as "The Crying Game" (1992) and "Ace Ventura: Pet Detective" (1994) included plot twists that hinged on that premise. 

"The narrative that transgender people are fraudulently posing as the ‘opposite’ sex with deceptive intent is one of the oldest tales in the book," Redfield said.

But it has also cropped up in legal matters.

When a handful of transgender women in 1960s New York City requested their birth certificates be changed to show an "F" for female, the city convened a committee of medical doctors who denied the requests, writing, "The desire of concealment of a change of sex by the transsexual is outweighed by the public interest for protection against fraud."

Over the next 40 years, policies regarding ID changes shifted away from concerns about fraud. Officials instead focused on whether a person’s gender identity was permanent, with agencies often requiring proof of a surgical procedure in order to alter one’s documents, Paisley Currah, a City University of New York political science professor, said. 

"It's been a very long time since the idea that transgender people are frauds has circulated," said Currah, who has written extensively about changes to the legal and social definitions of sex. 

As part of a larger trend of states rolling back policies allowing for changes to IDs Florida’s Department of Highway Safety and Motor Vehicles said in 2024 it would no longer allow people to change their driver's license gender description. It released a memo that said "misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud" and "subjects an offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license."

It was not clear if anyone has been criminally charged under that interpretation, but its mention of fraud was new.

Texas Attorney General Ken Paxton sued the NCAA in December, arguing its marketing of women’s sports is "misleading" and "deceptive" because it lets transgender athletes participate.

The day after Trump issued his executive order affecting athletes, the NCAA announced it would comply. "The new policy limits competition in women's sports to student-athletes assigned female at birth only," it wrote.

Since taking office in January, Trump has sought to undercut transgender people’s existence in other ways, including signing a separate executive order that said only two sexes exist. "These sexes are not changeable and are grounded in fundamental and incontrovertible reality" the order said, describing a person’s insistence that they are transgender as "a false claim."