Last fall, the fate of Edin Carey Avendano-Hernandez, a transgender immigrant from Mexico, depended on whether a judge would recognize her as a woman, not a gay man. Avendano-Hernandez had suffered a lifetime of abuse growing up in Mexico because people could tell she was different even as she tried to hide it. She eventually escaped to Fresno, California, where she was able to live as a woman for the first time. But in 2006, she was imprisoned and then deported for a DUI. Back in Mexico, a group of border police raped her, and she was able to flee once again to Fresno, where she sought to stay her deportation order under the Convention Against Torture (CAT). The immigration judge refused her, partly because he would not recognize her transgender identity, but she won her case in appeal last September.
Jacqueline Nguyen, the 9th Circuit judge who ruled on the appeal, said in her decision that the immigration judge had erred “in denying [Avendano-Hernandez’s] application for CAT relief, ironically exhibiting some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country. The [immigration judge] failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered Avendano-Hernandez to be ‘still male.’”
This decision means that transgender immigrants who fight their cases in the 9th Circuit will have a useful precedent for their claims, but those in other parts of the country will not. For example, last year an immigration judge in Georgia refused the asylum claim of a transgender Mexican immigrant—partly on the basis that gay marriage is legal in parts of Mexico—even though Mexico has one of the highest trans murder rates in the world. This debate over transgender identity in asylum claims is part of a long history of inconsistent and derogatory treatment of queer* asylum seekers, of governments denying, disbelieving, and deriding their sexuality.
The United Nations Refugee Convention of 1951 established that individuals with a “well-founded fear of being persecuted” based on membership of a “particular social group” are entitled to seek asylum abroad. Today, homosexuality is illegal in nearly 80 countries, and at the time of the convention, it was still illegal in Australia, the UK, most of the United States, and most of Europe—in Australia and other former British colonies, these laws were a legacy of British colonial rule. When the United States began accepting gay and lesbian asylum seekers in 1990, some states still had anti-sodomy laws on the books. (The Supreme Court ultimately declared these laws unconstitutional in 2003 with its decision in Lawrence v. Texas.) Even after legalizing homosexuality, some governments disputed LGBTQ asylum seekers’ membership in the “particular social group” category, arguing that queer people are not a unified social group, or that they could simply hide their sexuality.
Queer identity is different from other persecuted identities: It often alienates individuals even from their immediate family, which is not usually true of people who belong to persecuted religious or political groups. This can make it difficult for queer asylum seekers to talk to anyone about their sexuality. Appearing before an immigration judge can be especially intimidating. Moreover, the complex internal nature of sexual identity can make it difficult to prove in court. Sometimes immigration judges subject queer asylum seekers to humiliating lines of questioning. And, as we’ve seen above, immigration courts have been slow to recognize the range of persecuted sexual identities—court rulings refer to the rights of “gay and lesbian” or “homosexual” asylum seekers, but not to LGBTQ people more broadly.
Asylum seekers as a group are some of the most vulnerable people in the world, and the particular treatment that queer asylum seekers must endure at home and while seeking asylum abroad can turn them into second-class citizens among second-class citizens. The following time line outlines important legal turning points for queer asylum seekers in Australia, Canada, the U.S., the UK, and the EU, but it should not be considered exhaustive.
Are LGBTQ Immigrants “Psychopathic Personalities”?
Since the Immigration Act of 1917, gay immigrants (or anyone considered to be a “pervert” or “deviant”) had been excluded from the United States under blanket categories that shut out the “mentally or physically defective.” The 1952 Immigration and Nationality Act preserved the exclusion using new language: Immigrants “afflicted with psychopathic personality” were barred from entering the country. In 1959, George Fleuti, a gay immigrant from Switzerland, was ordered deported on the basis of belonging to that category. He appealed his deportation on the grounds that “psychopathic personality” is a hopelessly vague term. The 9th Circuit judge agreed, declaring the law “void for vagueness” in this case, and staying Fleuti’s deportation order.
This ruling was a short-lived victory. The 1965 Immigration and Nationality Act included language specifically intended to prevent queer people from entering the country: According to the American Bar Association, in reaction to Fleuti’s case, the committee in charge of drafting the act “specifically included the term ‘sexual deviation’ as a ground of exclusion” in order “to resolve any doubt.”
Exodus from Cuba
In the spring of 1980, Fidel Castro offered Cubans a rare opportunity to leave the country (under his regime, emigration was heavily restricted). From April to June, the Cuban government allowed certain residents to leave on boatlifts to America. Many LGBTQ Cubans, especially gay men, who routinely had been harassed and detained by Cuban authorities, seized this opportunity. At first, President Carter welcomed the arrivals, who would eventually number more than 125,000. But, when Castro revealed he was sending over people who had been released from jail or from mental health facilities, the INS began screening entrants from the boatlifts.
In “‘Obvious Gays’ and the State Gaze,” published in the Journal of the History of Sexuality, Susana Peña points out that both the American and Cuban governments tried to spin the exodus to make themselves appear superior:
[T]he U.S. government and media were able to further a discourse of Cubans desperate to leave an oppressive country and a failed economic system. In order to challenge this discourse, Castro discredited those who wanted to leave and characterized them as undesirables, antisocials, lumpen proletariat, and escoria (scum) and added that the United States was “performing a tremendous sanitary service” by accepting them.
These differing motives affected how queer Cubans hoping to gain entry to the U.S. expressed their sexuality during different stages of their journeys. Peña notes that, at the Cuban border, many tried self-consciously flaunting their sexuality, or embodying a stereotypical version of it, in an attempt to obtain permission to leave from the Cuban police. However, upon arriving in the United States, they would suppress their identities, because gay immigrants were barred from the country at the time. Although admitting to being homosexual resulted in exclusion, INS officials didn’t press these arrivals to disclose their sexuality. The National Gay Task Force called this an immigration victory for gays, because it meant that gay immigrants would no longer be subject to probing interrogation of their private sexual lives by immigration authorities.
One of these émigrés would later become a historical figure for LGBTQ rights in America. In 1986, Fidel Armando Toboso-Alfonso, a gay man who came to the U.S. on a Cuban boatlift, sought asylum on the grounds that he was part of a persecuted social group. Earlier that same year, however, the Supreme Court had upheld the constitutionality of state laws banning sodomy in Georgia. In the ruling, Chief Justice Burger concluded that, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” In Toboso-Alfonso’s case, the INS argued that recognizing his inclusion in a persecuted social group “would be tantamount to awarding discretionary relief to those involved in behavior that is not only socially deviant in nature, but in violation of the laws or regulations of the country as well.” However, in 1990, Toboso-Alfonso won asylum on appeal—the same year that the language excluding “sexually deviant” immigrants was removed from the U.S. Immigration Act.
In 1993, the Supreme Court of Canada clarified that asylum seekers making claims based on persecuted sexual orientation could apply for asylum as part of a “particular social group.” The following year, Attorney General Janet Reno used Toboso-Alfonso’s case to establish a similar principle in the U.S., applying the precedent to other queer asylum seekers. Barney Frank, a gay congressman from Massachusetts, praised the decision: “To be clear, this move by the Administration doesn’t by itself let one person in,” he told the New York Times. “What it does is allow gays and lesbians to argue that they can be considered a member of [a] particular social group which is targeted by their government for persecution.”
The Right to Privacy, Dignity, and the Expression of Sexual Identity
In 1996, the United Nations High Commissioner for Refugees made policy “that persons facing attack, inhumane treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognised as refugees.”
The Australian Refugee Review Tribunal had been inconsistent in its treatment of gay asylum seekers, but in 1998 Australian federal law upheld that gay residents of countries that criminalized “homosexual acts” could claim a fear of persecution. But even after this ruling, Australian immigration judges would still argue that gay asylum seekers could be safe in their home countries if they exercised discretion.
In 1999, three members of the UK’s House of Lords acknowledged that homosexuality can constitute membership in a persecuted social group in some circumstances. As in Australia, though, asylum applicants would still be turned away on the grounds that they could hide their sexualities in their home countries. In 2003, however, the High Court of Australia made it official policy that asylum judges could not argue that gay applicants could simply “cooperate in their own protection” by hiding their sexuality. In a similar decision from 2010, the UK’s Supreme Court rejected the notion that gay and lesbian asylum seekers could be expected to conceal their sexuality upon deportation, and unanimously granted asylum to two gay men after they were initially rejected.
Bernard Keenan, who worked as a solicitor for the firm that represented one of these men, wrote for Socialist Lawyer, “Political dissidents have never been told to return home and simply pretend to support the regime. Religious minorities have never been deported and expected to convert to whatever the dominant sect may be. So this decision simply recognizes that sexual freedom should be protected in the same way.” But Keenan warned that “practitioners should not make the mistake of assuming that the law is now loaded in the claimant’s favour,” predicting that “the Home Office will increasingly refuse to believe a claimant is not straight” and that “sexual history” would “be invasively interrogated.” These warnings proved prescient.
In 2013, the Guardian reported that, “Refusals are now more commonly made on the basis that claimants are not, or cannot prove, that they are gay, lesbian, or transsexual.” Asylum seekers felt pressure to go as far as filming themselves during sex to prove that they were gay. The following year, the Guardian revealed that UK Home Office officials had asked a bisexual asylum seeker, “What is it about men’s backsides that attracts you?” and “What is it about the way men walk that turns you on?” as well as other sexually explicit questions.
In 2014, however, the Court of Justice of the European Union issued a ruling to put a stop to this, at least in the EU, forbidding immigration courts from “testing” the sexuality of asylum applicants in ways that violate the “right to human dignity” and “right to respect for private life.” The ruling was a response to the rejection of three asylum seekers by the Netherlands—some of whom had submitted videos of themselves having sex as evidence. The court advised immigration authorities to avoid questioning that stemmed from “stereotypes as regards homosexuals” and to eschew “detailed questioning” about asylum seekers’ “sexual practices.” The EU court also banned the use of material that violates asylum seekers’ dignity and right to a private life as evidence, including video.
An Uncertain International Climate for LGBTQ People
U.S. immigration judges do not always recognize the difference between transgender and gay identities. This invalidates transgender asylum seekers’ real fears of persecution, especially acute if they come from countries that victimize transgender but not gay individuals. Globally, LGBTQ people are losing fundamental rights in some countries even as they win them in others. But seeking asylum in a country that only tepidly accepts your sexual identity is risky. In the U.S., the government-defined validity of different sexual identities is inconsistent and in constant flux. For transgender immigrants, this adds an extra element of struggle to the already arduous asylum-seeking process. Until governments recognize the rights of all people to the expression of their sexual or gender identity, safe haven for LGBTQ asylum seekers is uncertain at best.
*The terms LGBTQ and queer are used as synonyms throughout this article.