LGBTQ+ Immigration: An Issue Worthy of Special Consideration
By: Michael Gallego | Intern
This past month marked the celebration of Pride Month in the United States. In the month of June, we mark our calendars to promote the dignity, equality, and value of the LGBTQ+ community and the individuals that compose it. At TNJFON, this was a time to reflect on how relentlessly advocating for the fair treatment of the LGBTQ+ community runs in parallel with our larger mission to advocate for and represent our immigrant neighbors.
Photo by Jose Pablo Garcia on Unsplash
Globally, more than 70 countries criminalize same-sex relations, the gender expression of trans people, or actively espouse laws that discriminate against the LGBTQ+ community.[1] Penalties can range from fines to life imprisonment and even death. LGBTQ+ individuals, moreover, are frequently subjected to hate crimes and social persecution outside of jurisdictions that explicitly protect against this.
Oftentimes, LGBTQ+ persons face no choice but to emigrate from their home countries to escape the violent manifestations of LGBTQ+ discrimination. Many LGBTQ+ people from around the world look to the United States as a beacon of hope for protection from persecution and to live openly.
In this way, LGBTQ+ issues are firmly attached to immigration and the underlying mission to uplift our neighbors. It is our duty as Americans and neighbors to protect and assist these people as they seek asylum, permanent residence, and citizenship.
Living up to the high ideals of equality, tolerance, and liberty is a necessary pursuit in our collective conceptualization of how the U.S. immigration system ought to function. In the long history of immigration policy in the United States we have often faltered in upholding these values, but the long-term trajectory has bent towards social progress.
To be clear, however, much work still remains to cultivate a more just and more tolerant immigration policy, especially for LGBTQ+ immigrants.
From the twentieth century onwards, the LGBTQ+ community have faced significantly higher barriers of entry in their quest to attain the American Dream. In only the last thirty years have members of the LGBTQ+ community been able to legally immigrate to the United States.
The Immigration Act of 1917 explicitly excluded gay and lesbian individuals from immigrating to the United States by barring entry to individuals who were “mentally defective” or had “constitutional psychopathic inferiority,” the then Immigration and Naturalization Service interpreted this wording to exclude gays and lesbians.[2] This policy continued in 1952 through the Immigration and Nationality Act which denied admission to the United States for “aliens afflicted with a psychopathic personality, epilepsy, or a mental defect.” The U.S. Supreme Court interpreted this measure to include LGBTQ+ individuals.
The Immigration Act of 1990 formally abrogated sexual orientation as a qualification for immigration.[3] Certain barriers, however, still remain that implicitly disadvantaged LGBTQ+ immigrants. Between 1993 and 2010, the Department of Health and Human Services designated HIV as a “communicable disease of public health significance” that made a person unable to successfully immigrate to the United States.
Tacitly, the “HIV ban” precluded many gay men from immigrating to the U.S. in the years it was in place. While the ban was in place, moreover, many immigrants seeking to attain documentation were discouraged from getting tested or obtaining medical care out of fear of deportation. In 2010, under the Obama administration, the Department of Health and Human services lifted HIV from the list of inadmissible diseases.
Lastly, same-sex couples were denied marriage-based immigration benefits until 2013 when the Supreme Court decided in U.S. v. Windsor that the Defense of Marriage Act was unconstitutional.[4]
In the very recent past, policies have been set in place to undermine the successful immigration of LGBTQ+ individuals. Executive Order 13769, the Muslim Travel Ban, which was implemented between January and March 2017 suspended entry for travelers and immigrants from Iran, Iraq, Syria, Somalia, Libya, Sudan, and Yemen. This policy not only discriminated against Muslims, but also LGBTQ+ immigrants who stood the most to gain from open travel with the United States.
The aforementioned countries have some of the worst criminal penalties for same-sex relations and trans-gender expression. The Muslim ban demonstrated the susceptibility of the contemporary immigration system to be arbitrarily manipulated and the inadvertent consequences for marginalized groups, including LGBTQ+ folks, seeking a better life in the United States.
Today, the LGBTQ+ immigrant community still faces significant hardships in gaining entry to the United States and in their interactions with the immigration system. LGBTQ+ individuals encounter unique adversity when caught up in the immigration detention and enforcement system. LGBTQ+ people, especially transgender individuals, in ICE custody are “97 times more likely to be sexually victimized than non-LGBT people in detention.”[5]
In addition, LGBTQ+ immigrants, perhaps more than any other immigrant group, require access to sound legal counsel in order to protect themselves from discrimination in areas like housing, employment, and family recognition. Evidently, such counsel is rarely accessible to new LGBTQ+ arrivals in the United States, and immigration services fail to routinely point such people in the direction of legal representation that can meet their unique needs and protect them from exploitation.
Additionally, legal barriers present in the contemporary immigration system makes accessing health service, including mental health care, difficult for immigrants across the board. For LGBTQ+ immigrants especially, health services, health education, and mental health care are necessary for their survival and successful integration into life in the United States.
Sections 1325 and 1326 of Chapter 8 of the U.S. Code, which imposes criminal penalties for unauthorized entry and reentry, pose significant threats to the safety of LGBTQ+ immigrants seeking asylum status in the United States. For many LGBTQ+ immigrants, deportation is a risk to their personal well-being and life.
Returning to a home country that is socially and legally intolerant of LGBTQ+ status can entail susceptibility to hate crimes and unjust treatment at the hands of governments. Precluding individuals from applying for asylum after being deported clearly runs at odds with our country’s commitments to human rights norms.
Centering the struggles LGBTQ+ people face in our immigration system and seeking to rectify these wrongs will ultimately engender a more humane system for all who seek to live in our country. Our history has shown that we have faltered in making the United States a welcoming place for all who seek to live here. While our policy toward LGBTQ+ immigrants has improved over time, much work remains, and we all must do our part.
Consider making a donation to Tennessee Justice for Our Neighbors today in support of the LGBTQ+ immigrant community.
[1] https://www.humandignitytrust.org/lgbt-the-law/map-of-criminalisation/?type_filter=crim_lgbt
[2] https://www.loc.gov/law/help/statutes-at-large/64th-congress/session-2/c64s2ch29.pdf
[3] Davis, Tracy. "Opening the Doors of Immigration: Sexual Orientation and Asylum in the United States". Washington College of Law.
[4] United States v. Windsor, 570 U.S. (2013).