U.S. Law Prohibits Gay and Lesbian Immigration

Between 1952 and 1990, U.S. immigration law prohibited lesbians and gays from visiting, immigrating to, or becoming naturalized citizens of the United States. The U.S. Supreme Court upheld this policy in 1967, and the Immigration Act of 1990 revised it to the benefit of GLBT persons.

Date 1952-1990

Also known as: McCarran-Walter Immigration and Nationality Act

Locale Washington, D.C.

Key Figures

• Barney Frank (b. 1940), Democratic representative from Massachusetts
• Alan Cranston (1914-2000), Democratic senator from California

Summary of Event

Although many countries have laws criminalizing homosexual acts, between 1952 and 1990 the United States had an official policy of refusing entry to visitors and potential immigrants on the basis of their sexual orientation. Immigrants who entered the country legally but were later discovered to be homosexual were ineligible for citizenship and could be deported at any time, regardless of how many years they had lived in the United States as law-abiding residents. This strict exclusion policy was in place for decades even though the word “homosexual” never directly appeared in U.S. immigration law.

In 1952 the U.S. Congress passed the McCarran-Walter Immigration and Nationality Act, which focused on the exclusion from entry of communists, anarchists, and other alleged subversives. Although the 1952 act was the first to include homosexuals, it must be viewed in the context of long-standing policies of excluding “undesirable” races, nationalities, and minority groups. Prostitutes, polygamists, paupers, alcoholics, drug addicts, and the mentally and physically disabled, as well as those who could not prove “good moral character,” were also barred from legal entry.

The homosexual exclusion policy of the new law cannot be understood apart from the Cold War context in which the “homosexual menace” was conflated with communism and un-American activities. In 1950 the U.S. Senate conducted a massive investigation into “sex perverts” in government. This investigation laid the groundwork for President Dwight D. Eisenhower’s executive order banning homosexuals from federal employment, which resulted in the resignation or termination of more than one thousand employees during the following three years. Meanwhile, the military purged thousands of suspected homosexuals from its ranks each year.

In 1950 the Senate’s drafting committee proposed that the new immigration law explicitly bar foreigners deemed “psychopathic personalities” or who were thought to be “homosexuals and sex perverts.” However, when advised by the U.S. Public Health Service (PHS) that psychiatrists considered the term “psychopathic personality” to be “sufficiently broad” to include homosexuals, Congress omitted the phrase “homosexuals and sex perverts” from the final wording. Nevertheless, Congress clearly specified for the legislative record that the change in terminology was “not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates.” Thus, even though the law never used the word “homosexual,” Congress made clear its goal of preventing the entry of all such persons into the United States.

Significance

It is impossible to know how many potential visitors and immigrants had been affected by this policy, as the Immigration and Naturalization Service (INS) maintained no exact records. Moreover, most foreigners who apply for visas do so at U.S. embassies in their home countries. No records exist regarding the degree to which embassy officials abroad grilled visa applicants on their sexual orientation. Some reports suggest that until the 1980’s the INS routinely queried foreign nationals arriving in the United States regarding their sexual and criminal histories. Grounds for suspicion could include appearance, non-gender-conforming dress, unmarried status, possession of gay or lesbian literature, or plans to attend a gay rights conference. In an unusually well-publicized case from 1979, two Mexican men were refused entry, one because he was carrying what INS officials said “looked like a woman’s handbag” and the other because he was wearing a gold earring.

Anecdotal evidence indicates that some INS border officials deliberately singled out suspected homosexuals. One lawyer reported that an INS officer on the Mexican border in the 1960’s was responsible for the exclusion or deportation of hundreds of Mexican women for “sexual deviation.” “Manish”-looking women were particularly susceptible. Canadian women attending the Michigan Womyn’s Music Festival in the early 1980’s reported being harassed by border officials and questioned in detail about their sex lives.

Since foreign nationals who were denied entry into the United States had no legal right to appeal their exclusion, nearly all challenges to the law involved immigrants who were granted legal entry but later faced deportation when the INS became aware of their homosexuality. Before an immigrant could leave the United States, whether for a family visit or for a trip abroad, he or she had to undergo a reentry hearing upon return. In 1961, Sara Quiroz was stopped at the U.S.-Mexico border after a family visit because her short hair and trousers aroused suspicion. At first she denied being a lesbian, but after repeated questioning she admitted she was a lesbian and was refused reentry. In her legal challenge Quiroz asserted that her homosexuality did not necessarily make her a psychopathic personality. Despite the testimony of two doctors on her behalf, a U.S. Court of Appeals, in Quiroz v. Neelly, rejected her argument and upheld her deportation.

In 1962, however, a different appeals court held that the term “psychopathic personality” was too vague to be indiscriminately applied to all homosexuals (Fleuti v. Rosenberg). The court relied on medical experts who expressed the profession’s growing skepticism regarding the term’s usefulness and legitimacy. Unfortunately, this victory was short-lived. At the urging of both the PHS and the INS, in 1965 Congress amended the McCarran-Walter Act to exclude “aliens afflicted with psychopathic personality, or sexual deviation, or a mental defect.” The congressional report made it clear that “sexual deviation” was expressly intended to include homosexuality.

In 1967, the Supreme Court held that Congress had fully intended the phrase “psychopathic personality” to exclude all homosexuals and that such an exclusion was constitutional. In this case Clive Boutilier, a Canadian national, had lived in the United States for eight years when he applied for citizenship. After the PHS determined that he was a homosexual, the INS instituted deportation hearings. The Supreme Court upheld his deportation (Boutilier v. INS). However, during the 1970’s some judges rejected the Supreme Court’s ruling. In 1971, a New York district court granted citizenship to a gay Cuban man, ruling that homosexuality per se did not preclude the finding of “good moral character” required for naturalization (In re Labady).

Under the 1952 act, legal immigrants also faced deportation following arrest for unspecified “crimes of moral turpitude.” These typically referred to “morals offenses” such as loitering, solicitation, lewd and lascivious behavior, disorderly conduct, or vagrancy, all of which were associated with public homosexuality. Gay men, the targets of undercover police entrapment operations at places frequented by gays, were far more likely than lesbians to be deported under this provision. While homosexuality per se might go undetected, arrests for solicitation branded male resident aliens. In a representative case, a Greek immigrant was deported in 1959 after thirty-nine years in the United States. He had twice been convicted of disorderly conduct for “loiter[ing] about [a] public place soliciting men for the purpose of committing a crime against nature. . . .” Local police informed the INS, which ordered his deportation (Babouris v. Esperdy).

As Babouris suggests, police were supposed to contact the INS following an alien’s arrest. However, this occurred irregularly. In most cases the INS became aware of criminal charges indicating homosexuality from questioning during a reentry interview. For gay and lesbian immigrants, any trip abroad could exact a heavy price: denied reentry. In addition, any time resident aliens sought to change status (for example, from a student visa to permanent residency status) they had to undergo another examination, which also carried the risk of deportation. In 1965, a Filipino student sought permanent residency. After the required medical examination, the PHS physician issued a certificate classifying him as a sexual deviate. Dismissing his claim that he had not been a homosexual at the time of his original entry, the appeals court upheld his deportation (Campos v. Immigration and Naturalization Service, 1968). In all of these situations, the numbers of immigrants affected remain unknown.

After the American Psychiatric Association (APA) declared in 1973 that it would no longer classify homosexuality as a mental disease, APA president John Spiegel urged the INS to stop excluding and deporting homosexuals. The INS replied that it was legally obligated to uphold the law. However, in 1979, the PHS director, Surgeon General Julius Richmond, referring to the APA’s decision, told the INS that the PHS no longer viewed homosexuality as a medically certifiable condition and would no longer participate in exclusion proceedings.

The INS was caught in a bind. The 1952 act required officials to send suspected homosexuals for an interview with a PHS physician, who issued a “Certificate A” declaring that the applicant was a psychopathic personality (or sexual deviate) and thus barred from entry. Without this certificate there were no legal grounds for exclusion. In 1980 the Justice Department announced new INS guidelines for “the inspection of aliens who are suspected of being homosexual.” INS inspectors would no longer ask any direct questions about an individual’s sexual orientation. Nor would possession of gay literature, wearing of gay rights buttons or T-shirts, or attendance at a gay rights conference be considered grounds for further questioning. However, in the event that an individual made an “unsolicited, unambiguous…admission of homosexuality,” he or she would be asked to sign a statement and would be referred for an exclusion hearing. Not all INS officers immediately complied with these less repressive guidelines, resulting in the increasingly arbitrary processing of suspected homosexuals.

Contradictory court decisions added to the confusion, resulting in even more inconsistent treatment. In 1983 the Ninth U.S. Circuit Court of Appeals held that the INS could not exclude an out gay person without a PHS medical certificate (Hill v. INS). The court went further and questioned the constitutionality of the INS exclusion policy. However, three weeks later the Fifth U.S. Circuit Court of Appeals ruled that the INS could deny citizenship to a homosexual applicant solely because he was gay. The plaintiff, a British citizen and small-business owner, had been a law-abiding resident for eighteen years and had never been charged with a crime (Longstaff v. INS).

As during earlier periods, the numbers affected remain unknowable. INS official statistics indicate that 172 applicants were denied entry to the United States between 1984 and 1988 under the category “aliens afflicted with psychopathic personality, or sexual deviation, or a mental defect.” However, there is no breakdown that lists how many were considered gay. Moreover, as mentioned, these statistics do not include all those applying for admission to the United States, such as those who were denied visas by embassy officials abroad or those whom INS officials informally persuaded at the border not to bother applying for entry. Rather than risking an official record of denied entry, “effeminate” males or “manly” women might choose to try their luck another day.

Throughout the 1980’s many fought for a total repeal. Gay U.S. representative Barney Frank (Democrat, Massachusetts) and Senator Alan Cranston (Democrat, California) led the fight in Congress while gay rights legal groups lobbied behind the scenes. In 1980, Cranston submitted the first bill to rescind the “sexual deviates” clause. The Justice Department endorsed the bill, which quickly died in committee. In 1984 and 1987 officials in the administration of President Ronald Reagan publicly endorsed an end to the exclusion policy in congressional hearings.

Finally, with very little fanfare, Congress eliminated the homosexual exclusion clause from the Immigration Act of 1990. With that, gays and lesbians gained the legal right to enter the United States as visitors, speakers, or immigrants without hiding their identities. However, because the “crimes involving moral turpitude” exclusion was not amended, even after the 1990 act lesbians and gays were at risk of deportation if convicted of sodomy or a public morality offense. Some courts continued to hold that homosexuals could be denied citizenship under the “good moral character” requirement, which remained in the 1990 act. However, after the historic Lawrence v. Texas decision in 2003, in which the Supreme Court finally struck down state sodomy laws as unconstitutional, the last grounds for homosexual deportation and denial of citizenship were eliminated.

In 2004, immigrants constituted 10 percent of the U.S. population, more than 30 million people—the largest number ever in the nation’s history. Given that statistic, it is clear that the end of homosexual exclusion has had an enormously liberating effect on the lives of millions of gay and lesbian immigrants and their partners, families, and friends. In addition gays and lesbians won the right to seek political asylum in the United States. In 1994, Attorney General Janet Reno formalized a 1990 administrative decision that accepted sexual orientation as a basis for asylum for applicants who could document a “well-founded fear of persecution” in their home countries.

Although the INS has granted asylum to several hundred gays and lesbians, groups such as Immigration Equality express concern over the many inconsistencies uncovered in INS decision making. Applicants from the same country are often treated very differently. Moreover, other provisions of immigration law continue to discriminate against gays and lesbians. Unlike heterosexual couples, U.S. citizens or permanent residents in a same-gender relationship with a foreign national who is temporarily residing in the United States (for example, on a student visa) have no right to request legal residency for their partners. As a result, thousands of binational couples live in fear of being separated. Similarly, unlike heterosexuals, gay and lesbian immigrants do not have the right to sponsor their partners from abroad. In 2000, the Permanent Partners Immigration Act (PPIA) was first introduced in Congress; it was unsuccessful. In contrast to the United States, sixteen countries grant immigration rights to same-gender couples.

In addition to these unresolved issues, a new form of exclusion has been created. The 1993 National Institutes of Health Revitalization Act barred admission to the United States of anyone with HIV-AIDS and required mandatory testing of immigrants applying for permanent residency. Those who test positive can be deported. This has had a disproportionate impact on gays and lesbians and remains a major issue for GLBT immigration rights groups.

Bibliography

Cain, Patricia A. Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement. Cambridge, Mass.: Westview Press, 2000.

Canaday, Margot. “’Who Is a Homosexual?’ The Consolidation of Sexual Identities in Mid-Twentieth Century American Immigration Law.” Law and Social Inquiry 28 (2003): 351-386.

Eskridge, William N. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.

Luibheid, Eithne. Entry Denied: Controlling Sexuality at the Border. Minneapolis: University of Minnesota Press, 2002.

Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.

Rubenstein, William B. Cases and Materials on Sexual Orientation and the Law: Lesbians, Gay Men, and the Law. 2d ed. St. Paul, Minn.: West, 1997.