Gay and lesbian immigrants

SIGNIFICANCE: US immigration law historically excluded openly gay and lesbian individuals on various basesanging from classifications as morally or medically unfit to their perceived social and political threats to the character of American society. This practice began to be challenged during the 1950s and was eliminated by the Immigration Act of 1990.

The original regulatory purpose of US immigration law was to manage easily recognized and defined ethnic, racial, and social groups, with existing provisions appliedwith varying degrees of accuracy and successto populations that did not fall within these categories. In the case of gay and lesbian immigrants, the underlying concept of homosexuality did not exist as such until the end of the nineteenth century. Prior to that time, US immigration officials had to utilize certain sections of federal laws originally intended to address questions of public welfare and health concerns to bar gay and lesbian people from immigrating.

Statutory Bars to Immigration

The federal Page Law of 1875 provided for the exclusion of people who had been convicted of crimes involving “moral turpitude”interpreted as including sodomywhile an 1885 statute barred persons who were judged incapable of taking care of themselves and would thus become “public charges” supported by the state. Immigration officials considered gay and lesbian individuals both mentally and physically degenerate and therefore barred from entry to the United States. This approach was applied to identified gay and lesbian people until 1917when a ruling from the federal government’s solicitor of labor invalidated its application to “moral perverts”unless actual proof of their lack of means of support existed.

The most problematic aspect of excluding this demographic was identifying them so that extant laws could be applied. In many urban gay communities, certain items of dress, social mannerisms, and behaviors were used to signal sexual orientation nonverballybut the fashions of these codes varied widely from country to country and were not known to most US immigrants. Only individuals who admitted their sexual histories after being legally admitted to the United States were subject to deportation. In one example, a young Greek immigrantin the course of an investigation on charges of breaking and entering in 1912confessed he had been sexually active with men in St. Louis, Missouri and was deported to Argentina.

The Immigration Act of 1917 kept the older exclusionary bases of medical and moral grounds, adding new language referring to “constitutional psychopathic inferiority.” This term reflected the intent of the discarded public charge category by preserving the idea that homosexuality was the result of a permanent psychological defect, whichinstead of forcing the state to support gay and lesbian immigrantswould drive these immigrants to prey upon American youth. Between 1917 and American entry into World War II in 1941, roughly three dozen people per year were deported under this provision.

The expanded Immigration and Nationality Act of 1952 kept the older language of federal immigration lawsrephrasing it to cover people suffering from mental disorders. Despite the absence of language in the law specifically targeting same-sex relationships, the Immigration and Naturalization Service (INS) interpreted its text as prohibiting the immigration of identifiable gay and lesbian individualsit began deporting dozens of gay people each year. Homosexual immigrants were also targeted with a requirement that immigrants be of “good moral character” taken from an earlier immigration law and used to deny applications for citizenship to gay and lesbian foreigners.

Challenges to Restrictive Laws

The 1950s and 1960s experienced legal challenges to the exclusionary policy, notably the case of Rosenberg v. Fleuti (1963)which held the term “psychopathic personality” was too vague for general applicationa judgment that led to an amendment of the 1952 act through the explicit addition of the term “sexual deviation.” The Canadian plaintiff in Boutilier v. Immigration and Naturalization Service (1967) presented psychiatric testimony attesting to his lack of pathology. He appealed his case to the US Supreme Court but was nonetheless eventually deported.

Immigration law and policy were early targets of the American gay rights movement, sparked by the Stonewall riots in New York City in 1969 and assisted by an erosion of the legal, medical, and psychiatric beliefs used to support and rationalize existing legislation that discriminated against LGBTQ individuals during the 1970s. The removal of homosexuality from the list of recognized mental illnesses by the American Psychiatric Association in 1974 led to a letter to the INS from the Public Health Service in 1979stating immigrants would no longer be examined for “psychopathic personalities” as grounds for exclusion. In 1976, the INS issued a confusing announcement stating while entry would not be denied to anyone who had been a “practicing sexual deviant,” immigration officials would reserve the right to deny full citizenship to people convicted of same-sex sexual acts. This policy persisted until 1980, when the INS instructed its personnel not to ask about applicants’ sexual orientations. However, the INS continued to exclude immigrants who admitted to being gay. In 1983, that policy was invalidated by the US Supreme Court’s ruling in Hill v. Immigration and Naturalization Service. The Immigration Act of 1990 formally removed homosexuality from the list of health-based exclusion grounds from federal immigration policy by eliminating the “sexual deviation” classification.

Late Twentieth and Early Twenty-first Century Issues

In 1987, US senator Jesse Helms of North Carolina introduced an amendment to a law to prohibit the entry of immigrants who tested positive for the human immunodeficiency virus (HIV)which can lead to the acquired immunodeficiency syndrome (AIDS). The amendment was justified as a public health measure, but it was not uniformly applied and was criticized by many American and international health organizations. The Immigration Act of 1990 gave the secretary of health and human services discretion to decide what diseases would be used as grounds for exclusion of immigrants an amendment in 1993 by Congress specifically excluding persons with HIV.

The use of an immigrant’s HIV status as the basis for denial of admission to the United States remained problematic into the twenty-first century, despite the development of drugs that have made AIDS a manageable condition. In 2009, the US Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) removed HIV infection from the list of communicable diseases of public health significance. As a result of the removal, HIV infection could no longer be used to deny entry to the United States.

Although sexual orientation stopped being used as a basis for immigrant exclusion during the 1990s, that decade witnessed the rise of new issues for lesbians and gay men applying for entry and citizenship. These issues centered on definitions of family, the AIDS epidemic, and quests for political asylum. Immigrants applying for US residency under family petitions were required to be legally recognized spouses, children, siblings, or parents of American citizens. The refusal of US immigration law to recognize the validity of same-sex partnerships—even those recognized by other nations, such as Canada—barred both same-gender partners who had formally wed and individuals in relationships with American citizens and wished to join their partners in the United States.

The same-sex marriage issue was further complicated when the Defense of Marriage Act was signed into law on September 21, 1996his controversial piece of legislation defined and limited marriage in the United States the union of a man and a woman. It thus explicitly relieved the federal government from recognizing same-sex marriages as valid partnerships. In early 2000, Representative Jerrold Nadler of New York introduced in the House of Representatives a bill for a law to be called the Permanent Partners Immigration Act. That bill called for the addition of the term “permanent partner” to all sections of federal immigration laws relevant to married couples. The bill was referred to the House Judiciary Committee and subsequently to the Subcommittee on Immigration and Claims, which took no actionater attempts to reintroduce the bill also failed. When it was introduced again in early 2007 as the Uniting American Families Act, it gained bipartisan support but was still not passed. In 2013, the US Supreme Court struck down the Defense of Marriage Act as unconstitutional in United States v. Windsor, and Janet Napolitanothe secretary of homeland securitydirected the US Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex partner in the same manner as those filed on behalf of an opposite-sex spouse.

Granting political asylum to persons who demonstrate legitimate and clear fears of persecution in their home nations has long been a part of US immigration law. However, the application of this principle to gay and lesbian immigrants has required a shift in perspective. The concept of regarding homosexual asylum-seekers as members of a persecuted minority who should be classified as refugees and be eligible for asylum in the United States came into use only during the last decades of the twentieth century. An earlyif unintentionalexample of this was the influx of gay Cubans to the United States as part of the Mariel boatlift in 1980.

In 1994, a ruling from the Board of Immigration Appeals declared a Cuban gay man to be eligible for asylumfollowed by a directive by Attorney General Janet Reno that immigration officials were to consider lesbians and gays under the rubric of a “social group” as stated in the existing regulations. This placed openly gay and lesbian people in a stronger position to request asylum than those who concealed their sexual orientations. The situation was further complicated with the 197 introduction of a one-year filing deadlinemaking any gays or lesbians who had arrived in the United States prior to April 1, 1997 ineligible to file for asylum.

During the administration of President Donald Trump (2017–21), issues surrounding immigration became even more contentious as Trump actively sought to enact new policies to limit the number of immigrants entering the USmany unauthorized immigrants faced renewed threats of deportation. These anti-immigration policies damaged the view that the US was a safe haven for gay and lesbian immigrants fleeing persecution in their home countries. Moreover, the policies led all immigrantsparticularly LGBTQ immigrantsto experience higher rates of violence.

The journey of migrants seeking refuge in the United States is fraught with danger. Many make an approximately 2,000 mile trek beginning in Southern and Central America, and traverse through Mexico. Almost 1,000 migrants die annually in attempting the final segment from northern Mexico through the United States border. There are no reliable estimates on the numbers who perish prior to reaching the US. In addition to the extreme peril faced by all migrants, LGBTQ members face even higher risks.

A 2017 study conducted by the Center for American Progress found gay and lesbian unauthorized immigrants made up 17 percent of anti-LGBTQ hate violence survivors, likely because they face discrimination on multiple levelsbased on both sexual orientation and/or gender identity and immigration status. Transgender women immigrants face particular challengesespecially those held in detention in immigration centers. The Center for American Progress reported they were disproportionately likely to be sexually assaulted and harassed, often have life-saving medications withheld, and were less likely to win their asylum cases. Members of criminal cartels which operate human-trafficking networks were reported to be extremely homophobic and deadly toward identified LGBTQ members. Homosexuality is illegal in Jamaica. Immigrant members from this country can also come under harsh treatment. Another challenge to LGBTQ members seeking asylum in the United States is that the legal process to do so can take many years.

Even after receiving asylum, gay and lesbian immigrants were more likely to face discrimination in areas such as housing, employment, education, and health care. Dozens of organizations across the country provide resources to help LGBTQ immigrants fight against such discrimination and better understand their legal rights.

As of 2021, 1.3 million LGBTQ immigrants lived in the USconstituting three percent of all immigrants. Of these, nearly 290,000 were undocumented immigrantsnearly 50 percent were between 18 and 29 years of age. Approximately 60,000 undocumented LGBTQ immigrants lived in California, 43,000 in Texas, 21,000 in Florida, and 20,000 in New York.

In the months immediately preceding the 2024 US presidential election, the LGBTQ advocacy group Gay & Lesbian Alliance Against Defamation (GLAAD) published a Fact Sheet that purported to show Republican candidate Donald Trump's historical record on immigration issues. The Fact Sheet opposed Trump's candidacy because it asserted that as president from 2017-2021, the Trump administration had posed obstacles to immigration that hindered the US from providing protection and asylum to immigrant members of the LGBTQ community. GLAAD noted persecution from sexual orientation was a legal basis to request asylum in the United States. GLAAD also published lists of claims made by Trump on immigration that cited inaccurate or contrived data.

Bibliography

Andriote, John-Manuel. Victory Deferred: How AIDS Changed Gay Life in America. University of Chicago Press, 1999.

Badgett, M. V. Lee. When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage. New York University Press, 2009.

Canaday, Margaret. “Who Is a Homosexual? The Consolidation of Sexual Identities in Mid-Twentieth-Century American Immigration Law.” Law and Social Inquiry, vol. 28, no. 2, 2003, pp. 351–86.

Eskridge, William N. “Immigration, Asylum, and Deportation Law and Policy.” Encyclopedia of Lesbian, Gay, Bisexual and Transgender History in America, edited by Marc Stein. Charles Scribner’s Sons, 2004.

"Fact Sheet: Donald Trump on LGBTQ Issues: Immigration." GLAAD, 5 Sept. 2024, glaad.org/fact-sheet-trump-immigration/. Accessed 9 Sept. 2024.

Garsd, Jasmine. "For LGBT Asylum-Seekers, Coming to the U.S. Is Hardly the End of a Harrowing Journey." NPR, 8 Feb. 2024, www.npr.org/2024/02/08/1220480721/immigration-lgbtq-violence-asylum. Accessed 9 Sept. 2024.

Gates, Gary J. LGBT Adult Immigrants in the United States. Williams Institute, Feb. 2021, williamsinstitute.law.ucla.edu/wp-content/uploads/LGBTImmigrants-Gates-Mar-2013.pdf. Accessed 14 Mar. 2023.

Goldberg, Shoshana K., and Kerith J. Conron. “LGBT Adult Immigrants in the United States.” UCLA School of Law Williams Institute, 23 Feb. 2021, williamsinstitute.law.ucla.edu/publications/lgbt-immigrants-in-the-us/. Accessed 16 Mar. 2023.

Gruberg, Sharita, et al. "Serving LGBTQ Immigrants and Building Welcoming Communities." Center for American Progress, 24 Jan. 2018, www.americanprogress.org/issues/lgbtq-rights/reports/2018/01/24/445308/serving-lgbtq-immigrants-building-welcoming-communities/. Accessed 14 Mar. 2023.

Luibhéid, Eithne. “Sexuality, Migration, and the Shifting Line Between Legal and Illegal Status.” GLQ: A Journal of Gay and Lesbian Studies, vol. 14, no. 2-3, 2008, pp. 289–313. doi.org/10.1215/10642684-2007-034.

Sarnoff, Leah, and Kiara Alfonseca. "LGBTQ+ Asylum Seekers Search for Safety in US after Persecution Abroad." ABC News, 12 June 2024, abcnews.go.com/US/lgbtq-asylum-seekers-search-safety-us-after-persecution/story?id=110482509. Accessed 9 Sept. 2024.

US Citizenship and Immigration Services. "Same-Sex Marriages." Department of Homeland Security, 3 Apr. 2014, www.uscis.gov/family/same-sex-marriages. Accessed 14 Mar. 2023.