Lesbians, Gays, Bisexuals, and Transgendered Immigrants

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Immigration 101 tracks my course in immigration law at Hofstra University School of Law. It is designed to provide in-depth information about a variety of immigration topics for the layperson.

Twenty years ago I was meeting with several gay rights activists who wanted to pass legislation that would allow a U.S. citizen to bring in a same-sex partner as an immigrant. “Wait a minute”, I said, “Don’t you know that it is illegal for homosexual immigrants to enter the United States?”

Most of my students at Hofstra are surprised to learn that when they were younger, there was a ban on gays and lesbians and other non-heterosexuals entering the United States as immigrants. Changes in the laws to remove these bars are a tribute to the work of LGBT organizations and civil liberties groups. When you look at the history of this ban, you realize that these activists were up against decades of bigotry.

This shameful story begins with the Immigration Act of 1917 which barred “mentally defective” immigrants as well as those who had a “constitutional psychopathic inferiority.” And, of course, homosexuals fit in these groups by the standards of the day. Congress changed the language a bit in 1952 but continued the ban on “aliens afflicted with a psychopathic personality, epilepsy, or a mental defect”, which included gays. The otherwise more liberal 1965 immigration law defined homosexuals as “sexual deviants” and continued to bar them. So three different Congresses, including the Congress that approved the Civil Rights Act, were worried enough about homosexuality that they took time out from World War I, the Korean Conflict, and the Vietnam War to pass laws to keep the gays out.

I used to joke that the real reason for the gay bar was that no red-blooded American boy could be gay, so homosexuality was seen as a contagion brought in from outside the country that could spread to our own population if we allowed too many of “them” to come in.

Now practically speaking, homosexuals can’t be identified by sight. So the only people being excluded were those ill-informed enough to admit being homosexuals or people too proud of their sexual identity to deny it when asked. This led to some tragic situations when homosexuals who had lived in the U.S. for many years visited abroad and were stopped on their return when they identified themselves as gay.

The prohibition on LGBT immigrants was not lifted until 1990. But, almost immediately after this victory for good sense, conservatives rallied behind Strom Thurmond and Jessie Helms to prevent anyone who tested HIV positive from entering the country. Generally we do not have blanket prohibitions on coming to the U.S. for people with a virus, particularly if it is not actively manifesting. We do ordinarily require that they understand how the disease can be transmitted and understand how to prevent its spread and that they have insurance to pay for treatment of the disease if it becomes active. It is clear that far from being a reasonable response to the threat to public health posed by AIDS, this was just an attempt to keep gays out of the country by a new means.

And, as we later learned, the guardian of American sexual morality, Jessie Helms, had earlier violated the purity laws of his own state when he sired an out-of-wedlock daughter with an African-American teenaged domestic in his household.

Things got so bad after the HIV positive ban went into effect that international conferences on AIDS could not be held in the United States because researchers and public health specialists from throughout the world were themselves barred from entering the U.S. if they tested HIV positive.

Today a waiver has been created allowing HIV positive individuals to enter the United States so long as they meet certain public health criteria.

But, while the prohibition on LGBTs coming to the United States no longer exists, and the ban on HIV positive individuals has been relaxed, sexual minorities still suffer separation from loved ones because of discrimination. Under the Defense Of Marriage Act (DOMA), a gay man or lesbian woman cannot file a family immigration petition for a same sex partner even if that relationship is a legal marriage in the country or state in which it was entered into.

The Republican Congress and President Clinton created a legal regime which turned a century of immigration law on its head when it made DOMA law. Traditionally, we looked to the place the marriage was entered into to see if a couple was married. So, during the years of segregation, if a state allowed interracial marriage, the immigration law recognized an interracial marriage performed there as valid even though some American states did not allow interracial marriage. Today, because of DOMA, even though Iowa recognizes same-sex marriage, our immigration law treats such marriages as a nullity. Its as though the marriage never happened. This violates our most basic notions of Federalism which traditionally treats institutions like marriage as matters of state regulation, not Federal jurisdiction.

The unfairness of the current treatment of same-sex married couples in an era when such marriages are becoming increasingly common has resulted in great harm to people who, though they love one another, are forced by our immigration laws to live lives separated by national boundaries.

Whenever someone tells me that the struggle for same-sex marriage equality is silly, I wonder if that person would say the same thing if he or she was banned from living in the same country as the love of his or her life.

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.

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