Immigrating While Queer: Part II, The Fight Ahead

June is National Lesbian, Gay, Bisexual, Transgender, and Queer Pride Month, which honors the important contributions that LGBTQ+ Americans have made to U.S. history and culture. Visit the National Archives website for more information on our related holdings. Today’s post from Jennifer Halpern is the second in a two-part series looking at the immigration challenges faced by queer and gender nonconforming people over the last century. This post contains language that may be offensive to readers.

In the mid-20th century, anti-sodomy laws became common in state and local jurisdictions in the United States. Flirting or asking out another person of the same sex or cruising in public spaces were seen as soliciting immoral acts. This extended to personal lives, meaning two same-sex adults could not pursue a romantic relationship in private. Police departments even created task forces specifically to target and arrest gay men who might be violating morality codes and laws.

For a foreign national with a U.S. residency visa or seeking to naturalize, being arrested for solicitation for an indecent or immoral act or loitering in a public space put them at immediate risk for deportation. Arrests for offenses were regarded as if they were serious crimes, and the “condition” of being a homosexual was the root cause. From the 1960s into the 1980s, queer immigrants and residents contested language and legal interpretations used to maintain homosexuality as a condition and status worthy of exclusion. 

During the 1960s, immigrations cases involving queer petitioners, such as Quiroz v. Neelly (1961), Fleuti v. Rosenberg (1963), Immigration and Naturalization Service (INS) v. Lavoie (1967), and Boutilier v. INS (1967) challenged the language of “psychopathic personality” and “sexual deviate” and its application to queer people. These cases confronted the INS’s and the Board of Immigration Appeals’ squishy interpretation and implementation of policy and statutes. 

These cases demonstrated that tourists, legal residents, and immigrants petitioning for naturalization, some of whom had lived and worked in the United States for decades, could face questions about their personal lives and physical relationships based solely on their appearance—their clothing, haircut, manner of walking, or the buttons on their shirts. Quiroz’s case file revealed that she was asked about her sexual orientation because of her short hair and the fact she was wearing pants. Immigrants faced questions like, How often did they have sex? With men and women? And one person’s personal life and sexual experiences were discussed and debated in court.

While ultimately these immigration petitioners were not successful in the court, a few things developed as a result of these cases, according to Margot Canaday, Shannon Minter, and other legal scholars: There was no consensus or generally agreed understanding of “psychopathic personality” when applied to queer people. When Congress was drafting the McCarran-Walter Act in the early 1950s, the mental health community warned that the language was too vague to include homosexuals, and in court testimony, medical and mental health professionals stated that applying “psychopathic” to homosexuals universally was plainly inaccurate. Meaning, being gay didn’t make a person crazy or mentally ill. 

In fact, in Quiroz v. Nelly and Boutilier v. Rosenberg, Public Health Service doctors and psychiatrists could not agree on the definition of “psychopathic personality.” The defendants worked to prove that they were not psychopathic simply by having physical relationships and sex with same-sex partners. Their doctors pointed out their ability to maintain employment, provide for themselves and in some cases their family, and have positive relationships and reputations in their community. The reality of their personal lives countered the mythical image of the unstable, and dangerous, homosexual who should be excluded from American society. 

What’s more, policymakers could not agree on what exactly made a queer person queer, at least for those who had a heteronormative worldview. There was debate over how many sexual acts made a person a homosexual. Was a person a homosexual after one experience with another same-sex person? Maybe two? Four? Did it count if the person mostly had relationships with a person of the opposite sex but they had been with a same-sex partner a few times? Was being the passive partner during sex mean a person was not a homosexual? What if a man had sex with men but had a few experiences with women? Did that make him less (or more?) of a homosexual than someone who had only had a few experiences but lived with his mother and went to church every Sunday?

The INS also asked when a person was or was not a homosexual and whether it was before or after they arrived to the U.S., as being excludable before entry would determine their case. However ridiculous and cringeworthy they may seem today, these are the types of questions asked of immigration petitioners and publicly debated in their cases.

In 1965 Congress amended the Immigration and Nationality Act to specify that people afflicted with “sexual deviation” would be excluded from entering the United States, and this category would be used for homosexuals. At the same time, more psychiatric and mental health professionals were distancing themselves from supporting the notion that homosexuality should fall under “psychotic.” However, the INS disregarded psychiatric and medical testimony and, with the courts backing in 1966, they argued that “homosexual” was a legal term used in the legislation, and that they were rightfully excluding a dangerous category of people, not an individual person with certain behaviors or inclinations.  

The problems with the homosexuality exclusion statute in the 1965 Immigration and Nationality Act were long noted by immigration judges, state and federal officials, the American Bar Association (ABA), the American Civil Liberties Union (ACLU), and LGBTQ civil liberties organizations, and by the late 1970s, 22 states had repealed anti-sodomy laws, as well as other local morality codes. However, there wasn’t a substantial impact until 1974, when the American Psychological Association (APA) removed homosexuality from the category of mental disorders in the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III). An excerpt from an interview with Robert L. Spitzer, MD, summarizes how being queer did not mean the person was mentally ill or worse, psychopathic: 

Homosexuality, by definition, refers to an interest in sexual relations or contact with members of the same sex. Now, when we come to the question of whether or not homosexuality is a psychiatric illness, we have to have some criteria for what a psychiatric illness or disorder is. The criteria I propose applies to almost all of the conditions that are generally considered psychiatric disorders: The condition must either regularly cause subjective distress or regularly be associated with some generalized impairment in social effectiveness or functioning. Clearly homosexuality per se does not meet these requirements: Many homosexuals are satisfied with their sexual orientation and demonstrate no generalized impairment.

~”The A.P.A. Ruling on Homosexuality,” The New York Times, 12/23/1973.

This did not change immigration law, but the claim that homosexuality was a mental illness or a health threat was no longer scientifically supported. Americans seeking to sponsor their spouses or long-term partners who were foreign nationals were automatically rejected because the status of a same-sex relationship was not legally recognized. In 1975, Richard Adams received this response from the INS after applying to sponsor his partner’s immigration to the United States:

“Your visa petition. . . . for classification of Anthony Corbett Sullivan as the spouse of a United States citizen [is] denied for the following reasons: You have failed to establish that a bona fide marital relationship can exist between two faggots.”

Adams and Sullivan went on to appeal the INS decision through the Ninth Circuit Court in Adams v. Howerton in 1975 and lost their appeal. 

In 1979, a British tourist and photographer, Carl Hill, visiting California to attend the Gay Freedom Day Parade (San Francisco Pride) was detained by INS after the officer saw his gay pride buttons and asked him if he was a homosexual. Hill affirmed being gay, was subsequently detained, and refused the referral to the PHS physician to determine if he was gay. In response, on August 2, 1979, Dr. Julius B. Richmond, Surgeon General of the United States, announced that the Public Health Service would no longer issue Class A medical exclusion for homosexuality. In 1983, Hill filed suit against INS contesting his exclusion based on homosexuality and absent of a Class A medical exclusion certificate. The Ninth Circuit Court ruled in Hill’s favor, noting that exclusion must be based on a medical certificate.

In response to Hill’s case, the APA removing homosexuality from the DSM-III, and PHS no longer issuing medical Class A exclusion certificates for homosexuality, by September 1980 the INS announced it would only perform secondary investigations on queer or gender nonconforming persons unless they openly identified themselves under the LGBTQ umbrella (or gave an “unsolicited unambiguous admission of homosexuality”) or there was a third party who identified them. 

Despite the policy change, investigators continued to profile people based on their appearance, ask intrusive and humiliating questions about a person’s sexual orientation, and their physical relationships.

In 1979, a panel led by the National Gay Task Force (NGTF) testified before the Select Commission for Immigration Reform Policy (SCIRP) public meetings and urged reform to statue 212(a)(4) of the Immigration and Nationality Act. In their testimony, NGTF directors Charles Brydon and Lucia Valeska recounted experiences of tourists, and long-term residents seeking naturalization being harassed when stopped for their appearance, whether it was their clothing, haircut, or the way they talked. Despite the support, SCIRP used tepid language to recommend reform to statute 212(a)(4).

In his memo to Attorney General Ben Civiletti, Associate Attorney General John H. Shenefield succinctly presented the need to support repeal of statute 212(a)(4), arguing that it “is an anachronistic and oppressive statute.”

In 1980, Senator Alan Cranston introduced S. 2210 to repeal section 212(a)(4) of the Immigration and Nationality Act. On his floor speech he stated, “Simple fairness demands that we put an end to a form of discrimination that not only is intellectually unsound and medically unjustified but which also violates traditional American respect for the right of privacy and dignity of the individual.” The bill died in committee.

In 1981, a British national who had been a legal resident for 19 years sought to become an American citizen. Richard Longstaff, who made his home in Texas and started a small clothing store, Union Jack, was refused because he had not disclosed his “status” as a homosexual, which would have excluded him from receiving his resident visa in 1965. The only question Mr. Longstaff answered about himself in 1965 was if he was afflicted with a “psychopathic personality,” to which he responded “no” in his resident visa application. Being unfamiliar with the implicit meaning of the nomenclature, Longstaff was honest in his response: He was not psychopathic. 

Montrose Voice article, page 7, 2/26/1982. (Courtesy of the University of Texas Archives)

The INS accused him of “lack of candor,” meaning that he attempted to hide the fact that he was gay. Longstaff was also honest about his sexual orientation when wrongfully interrogated about his physical relationships during his naturalization interview. When Longstaff argued that he was not issued a medical certificate of exclusion at the time of receiving his resident visa, and therefore could not be denied naturalization, the judge countered that he had entered the United States under false pretenses—essentially that he intentionally lied about being gay—and he could still be deported. 

In 1984 the U.S. Supreme Court declined to hear Richard Longstaff’s appeal to overturn the Fifth Circuit Court’s decision. With help from Texas Congressman George “Mickey” Leland, Longstaff was not deported for being gay, and the INS agreed to return Longstaff’s green card if he did not pursue naturalization. 

The inequality between queer and heterosexual immigration experiences was documented, publicly shared in courtrooms and media, and could no longer be ignored. Yet, according to the INS, a person could not have “good moral character” if they were queer or gender nonconforming, despite a person’s clear criminal record, success, and contributions in community-building, much like Richard Longstaff.

In 1986, the U.S. Supreme Court denied the appeal in the case Bowers v. Hardwick, upholding Georgia’s anti-sodomy law, with Justice Byron White framing the case that homosexuals were not protected by the Constitution even in the privacy of their own homes. Justice Harry Blackmun led the dissent noting the Court was “willfully blind” to disregard the most basic clause of the right to privacy and the private sphere in which people conduct the most intimate associations. For queer and gender nonconforming people, privacy to engage in a person’s intimate relationships was not beyond the reach of the government. This left anti-sodomy and morality laws upheld, and being arrested for violating a state or local anti-sodomy statute left immigrants automatically rejected from naturalizing.

As the 1980s progressed, the proliferation of the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) devastated LGBTQ communities. The bias, ignorance, and fear about homosexuality was revived and became nearly as virulent as the virus and disease that took so many lives. Immigrants and refugees seeking safety and a better life faced greater challenges ahead. Despite the challenges, queer and gender nonconforming people responded by protesting, forging communities, founding legal and social organizations, cultivating chosen families, and defining success on their own terms. In part III, we’ll look at the legal battles and changes to legislation affecting queer and gender nonconforming people from the 1990s to the present day.

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