LGBTQ Immigration to the US
The United States is often considered a relative safe haven for LGBTQ individuals. Between 2012 and 2017, USCIS received an estimated 11,400 asylum applications based on LGBTQ status. But although many queer migrants today move to the US to escape violence, discrimination, and abuse, protections for these individuals did not always exist. Just 35 years ago, LGBTQ people were entirely banned from immigrating to the US.
The legal history of LGBTQ immigration is part of a larger trend of exclusionary policies designed to keep out those considered “undesirable” and “deviant” by elites. While immigration law during much of the 20th century served to prohibit LGBTQ individuals and portray them as inferiors, developments in more recent decades have reversed those harmful policies and made immigration more accessible, regardless of gender or sexuality.
Exclusion in Early Immigration Policy
For most of US legal history, immigration policy has been used to police sexuality and discriminate against those who the government considered “deviant” or different. The country’s very first exclusionary immigration policies, the 1875 Page Act and the 1882 Chinese Exclusion Act, were largely based on stereotypes that Chinese migrants were sexual predators.
The Immigration Act of 1917 was the first time that queer and gender nonconforming migrants were banned from entry. The law held a high moral standard for potential immigrants, barring LGBTQ people on the grounds that they were “constitutional psychopathic inferiors.” Under this legal categorization, homosexuality was considered a mental illness or disease.
Late 20th Century
The McCarthy Era and Lavander Scare of the 1950s led to further crackdowns on LGBTQ immigration. Homosexual and suspected homosexual migrants were excluded by the 1952 Immigration Act, as they were considered “aliens afflicted with a psychopathic personality, epilepsy or mental defect.” Just over a decade later, the groundbreaking 1965 Immigration and Nationality Act established a ban on “sexual deviation,” a catch-all category used to targetLGBTQ migrants.
These exclusions, and their coverage of LGBTQ people, were upheld by the Supreme Court case Boutilier v. the Immigration and Naturalization Service (1967). In this case, the Supreme Court ruled that Michael Boutilier could be deported because Congress had used the language of “psychopathic personality” to intentionally exclude “homosexuals and other sex perverts.” Twenty years later, President Ronald Reagan instituted a ban on HIV/AIDS-positive migrants, which disproportionately impacted LGBTQ individuals.
Reversing Exclusion
Since the end of the 20th century, US immigration policy has grown increasingly inclusive towards the LGBTQ community. The Immigration Act of 1990 eliminated bars from entry based on “psychopathic personality” and “sexual deviance” — still, the US was the last industrialized country to stop excluding LGBTQ immigration. And while sexuality was no longer an official barrier to immigration, many LGBTQ individuals continued to be impacted by the HIV ban that was not repealed until 2010.
LGBTQ Asylum
Nevertheless, the 1990 act opened the door for migrants to use gender and sexuality as the basis of their asylum claims. In 1994, the case of Tobonso-Alfonso was declared the standard for sexuality-based asylum, as it determined LGBTQ individuals were members of a particular social group and could be eligible for asylum. Later, the 2000 case of Hernandez-Montiel v. INSestablished protections for Geovanni Hernandez-Montiel, whose “female sexual identity” was ruled to be immutable and inherent. While the case incorrectly identified Hernandez as a gay man, it has paved the way for other transgender people to use their gender identity as basis for asylum.
Marriage-Based Cases
Marriage-based petitions have also expanded since the legalization of same-sex marriage. The Supreme Court case United States v. Windsor (2013) ruled that the Defense of Marriage Actwas unconstitutional and allowed the federal government to recognize same-sex marriages for the purposes of immigration. However, the rights granted in Windsor only reached states where same-sex marriages were legal; it wasn’t until Obergefell v. Hodges (2015) that same-sex couples could obtain legally-valid marriages in all states, and use those as the basis of immigrationpetitions.
Gender Selection
In more recent years, the US government has taken steps to make migration more inclusive for transgender and nonbinary individuals. Starting in 2022, citizens were allowed to self-select their gender on US passports, with the option of using X as their gender marker. The next year, USCIS updated its policy to allow noncitizen applicants to self-identify their gender, even whenit does not match the gender on their supporting documentation.
Looking Forward
While the past few decades have seen major progress for LGBTQ immigrants, more work still needs to be done. Queer and trans people continue to experience high levels of discrimination and violence, especially immigration detention, where they are 97 times more likely to face sexual abuse than non-LGBTQ people. And with immigration and LGBTQ rights policies constantly in flux, the future for queer migrants can sometimes feel uncertain.
The lawyers at Benach Collopy have always been proud advocates for the queer communityand can help make sense of what immigration laws, both past and present, mean for LGBTQ migrants.
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