Gay and lesbian immigrants

2011-12-12 10:59:42

Significance: U.S. immigration law has historically excluded openly gay and lesbian individuals on various bases, ranging from classifications of them as morally or medically unfit to their perceived social and political threats to the desirable character of American society. This practice began to be challenged during the 1950’s and was eliminated in 1990 by congressional repeal of a statutory provision barring entry to persons determined to be psychopathic personalities or sexual deviants.

The original regulatory purpose of U.S. immigration law was to deal with the management of easily recognized and defined ethnic, racial, and social groups, with existing provisions applied (with varying degrees of accuracy and success) to 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, U.S. immigration officials had to utilize certain sections of federal laws originally intended to address questions of public welfare and health concerns to bar homosexuals 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,” was interpreted as including sodomy, while an 1885 statute barred persons who were judged incapable of taking care of themselves and would thus become “public charges” supported by the state. Homosexuals were considered by immigration officials to be both mentally and physically degenerate—a combination that would render them unable to function in society. This approach was applied to identified gay and lesbian people until 1917, when 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 persons of same-sex orientation was identifying them so that extant laws could be applied. While in many urban gay communities certain items of dress and certain social mannerisms and behaviors were used by homosexuals to signal their sexual orientation nonverbally, the fashions of these codes varied widely from country to country and were not known to most U.S. immigration personnel. Only those individuals who admitted their sexual histories after being legally admitted to the United States were subject to deportation. An example of this is the case of a young Greek immigrant who, in the course of an investigation on charges of breaking and entering in 1912, confessed that he had been sexually active with men in St. Louis, Missouri. He 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 sexual inversion was the result of a permanent psychological defect, which, instead of forcing the state to support homosexual immigrants, would 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 laws, rephrasing it to cover people suffering from mental disorders or psychopathic personalities. Despite the absence of anything language in the law specifically targeting homosexuals, the Immigration and Naturalization Service (INS) interpreted its text as prohibiting the immigration of identifiable homosexuals, and it began deporting dozens of gay people each year. The morally suspect character of homosexuals was not forgotten, 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 1950’s and 1960’s witnessed legal challenges to the exclusionary policy, notably the case of Rosenberg v. Fleuti (1963), which held that the term “psychopathic personality” was too vague for general application, a 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 U.S. Supreme Court but was nonetheless eventually deported.

Immigration law and policy were early targets of the American gay rights movement, which was 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 during the 1970’s. 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 1979 stating that immigrants would no longer be examined for “psychopathic personalities” as grounds for exclusion. In 1976, the INS had issued a confusing announcement stating that 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 homosexual 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 homosexual. In 1983, that policy that was invalidated by the U.S. Supreme Court’s ruling in Hill v. Immigration and Naturalization Service. In 1990, the section of the INS statutes mandating the exclusion of people determined to be sexual deviants or psychopathic personalities was repealed.

Late Twentieth and Early Twenty-first Century Issues

Although sexual orientation stopped being used as a basis for immigrant exclusion during the 1990’s, 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, acquired immunodeficiency syndrome, and quests for political asylum. Immigrants applying for U.S. residency under family petitions were required to be legally recognized spouses, children, siblings, or parents of American citizens. The refusal of U.S. immigration law to recognize the validity of same-sex partnerships—even those recognized by other nations, such as Canada—bars both same-gender partners who have formally wed and individuals who have established relationships with American citizens and wish 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, 1996. This controversial piece of legislation defined marriage in the United States as limited to the unions of a man and a woman. It thus explicitly relieved the federal government from recognizing same-sex marriages as valid relationships. 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 action. Later 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 through 2009.

In 1987, U.S. senator Jesse Helms of North Carolina introduced an amendment to a law to prohibit the entry of immigrants testing 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 been not uniformly applied and has been attacked by many American and international health organizations. Reforms in the Immigration Act of 1990 reforms gave the secretary of health and human services discretion to decide what diseases would be used as grounds for exclusion of immigrants, but in 1993 a second amendment was passed by Congress specifically excluding persons infected with HIV. The spread of AIDS beyond the gay and lesbian community has widened the impact of this portion of immigration law with uncertain results.

Granting political asylum to persons who can demonstrate legitimate and clear fears of persecution in their home nations has long been a part of U.S. immigration law. However, the application of this principle to gay and lesbian immigrants has required a shift in perspective. The concept of regarding homosexuals 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 early, if unintentional, example of this was the influx of several thousand gay Cubans to the United States as part of the Mariel boatlift in 1980.

In 1994, a ruling fromthe Board of Immigration Appeals declared a Cuban gay man to be eligible for asylum, followed by a directive from 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 introduction in 1997 of a one-year filing deadline, making any gays or lesbians who had arrived in the United States prior to April 1, 1997, ineligible to file for asylum.

LGBT Activism

The growth in federal agencies involved with lesbian, gay, bisexual, and transgender (LGBT) immigration has been matched by the rise of LGBT activist organizations dedicated to advocacy and reform. The oldest such organization is the New York-based Immigration Equality, which was founded in 1994 as the Lesbian and Gay Immigration Rights Task Force. Lambda Legal, the Human Rights Campaign, and the International Lesbian and Gay Association have also made immigrant rights a priority of their civil rights work. Chief among the strategies proposed has been the creation of a pool of same-sex couples facing challenges to their own immigration status to serve as lobbyists in an effort to get the American Families Act passed and signed into law.

Other goals have included expanding the number of law firms who agree to accept LGBT immigration cases on a pro bono basis, educating both immigration judges and asylum officers on the legal rights of LGBT immigrants and asylum applicants, and raising awareness in corporate America of the impact that excluding skilled personnel on the basis of sexual orientation has on the national labor pool.

The use of an immigrant’s HIV status as the basis for denial of admission to America has remained problematic into the twenty-first century, despite the development of drugs that have made AIDS a manageable condition. Immigrants wishing to obtain HIV waivers are required to provide documentation attesting that they have received counseling on AIDS and its manner of transmission and do not constitute a public health threat to the United States. Qualifying for the waiver is also essential for obtaining permanent residency, even when prospective immigrants already have employers willing to sponsor their applications for legal permanent residence.

Robert B. Ridinger

Further Reading

  • Andriote, John-Manuel. Victory Deferred: How AIDS Changed Gay Life in America. Chicago: University of Chicago Press, 1999. Excellent analysis of the devastating impact of acquired immunodeficiency syndrome in the United States during the 1980’s and 1990’s. 
  • Badgett, M. V. Lee. When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage. New York: New York University Press, 2009. Study of how same-sex marriages have influenced societies that also includes some discussion of immigration issues. 
  • Canaday, Margaret. “Who Is a Homosexual? The Consolidation of Sexual Identities in Mid- Twentieth-Century American Immigration Law.” Law and Social Inquiry 28, no. 2 (2003): 351-386. Interesting essay on the problem of defining homosexuality that provides insights in the difficulties that immigrants historically faced. 
  • Eskridge, William N. “Immigration, Asylum, and Deportation Law and Policy.” In Encyclopedia of Lesbian, Gay, Bisexual and Transgender History in America, edited by Marc Stein.NewYork: Charles Scribner’s Sons, 2004. Broad discussion of the manifold legal issues surrounding gay immigrants. 
  • Luibhéid, Eithne. “Sexuality, Migration, and the Shifting Line Between Legal and Illegal Status.” GLQ: A Journal of Gay and Lesbian Studies 14, nos. 2-3 (2008): 289-313. Up-to-date exploration of legal problems that gay immigrants confront. 

See also: Acquired immunodeficiency syndrome; Boutilier v. Immigration and Naturalization Service ; History of immigration after 1891; Immigration Act of 1917; Immigration Act of 1990; Immigration and Nationality Act of 1952; Mariel boatlift; Marriage; “Moral turpitude”; Stereotyping.