No One Is Illegal
Before 1990, LGBTQ+ people were legally excluded from migrating to the United States. European settlers who migrated to and colonized the North American continent brought with them their own conceptions of gender and sexuality. These were forced on indigenous communities and enforced through immigration laws. The first federal immigration laws were exclusionary in nature – the Page Act (1875) and the Chinese Exclusion Act (1882) – prohibited the entry of “undesirable” immigrants and “unassimilable aliens,” such as the Chinese and people with mental illnesses. These laws not only policed U.S. borders, but also the boundaries of sexuality, gender, ability, and race.
Prevailing pseudoscience deemed homosexuality a psychological ailment, and the Immigration Act of 1917 excluded homosexuals from immigrating to the U.S. based on their status as “persons of constitutional psychopathic inferiority.” Until the early 1950s, prospective immigrants could be excluded or deported for engaging in homosexual activity. The climate of “homosexual panic” during the McCarthy Era that led to the purge of gays and lesbians from federal employment and the military contributed to the passage of the Immigration and Nationality Act of 1952, which explicitly barred foreigners from entering or staying in the U.S. for being – or suspected of being – homosexual. Immigration laws were amended in 1965 to explicitly add “sexual deviation” as medical grounds for denying entry to the U.S.
Immigration Act of 1990
It wasn’t until the Immigration Act of 1990 that homosexuality was removed as grounds of exclusion from the U.S. It was still legal to ban people living with HIV from immigrating; this ban was not overturned until January 2010. In 1994, “homosexuals” were added as a social group that could qualify for asylum, but LGBTQ+ people still face significant barriers to receiving refuge.
Though federal recognition of same-sex marriage in 2015 extended the protections of immigration laws for lawfully married people to LGBTQ+ couples, groups that don’t fit heteronormative models, such as trans* immigrants, face disproportionate discrimination.
Positive changes in federal immigration law only came about through persistent and vocal activism by groups in the LGBTQ+ community that fought to transform the system, sought inclusion in it, or formed coalitions with other immigrant rights groups.
With the Trump Administration's attacks on DACA (Deferred Action for Childhood Arrivals) and shameful policy of taking children from their parents, an increase in ICE (Immigration and Customs Enforcement) raids, criminalization of undocumented immigrants, and rising anti-immigrant violence, it is more important than ever that LGBTQ+ communities fight for a just immigration system for all people. LGBTQ immigrants, particularly transgender immigrants, are among the most vulnerable in ICE detention centers, where they often face abuse and violence. Moreover, increased scapegoating of immigrants goes hand in hand with increased attacks on indigenous communities. In the fight for a more equitable system, LGBTQ+ people should form coalitions with native people so their experiences of settler colonialism (which included separating them from their children) are not erased.