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.
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
The 1950’s and 1960’s witnessed legal challenges to the exclusionary policy, notably the case of
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
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
The same-sex marriage issue was further complicated when the
In 1987, U.S. senator
In 1994, a ruling from the
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
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
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. New York: 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.
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