A Few Notes on US Immigration Exclusion Policies Towards Women- and LGBT Immigrants
Note: This Article was originally published on December 25, 2015, on medium.com/@gabriellabregman
Women’s US Immigration Exclusion Policy History:
Immigration history technically started with the Page Act of 1875, (an anti-prostitution law against Chinese women, and precursor to the Chinese Exclusion Act,) taking advantage of the fact that there was no legal reason for immigrant women to have US citizenship at all, making them basically undocumented by nature. (Citizenship, amongst other things, contains voting rights and women did not have voting rights.) What made them documented was their married status to a US husband, only if he applied for her, since technically only he had to be documented, her status was a non-issue since she couldn’t vote anyway. If a female immigrant had no intention to marry she really didn’t need to bother to immigrate at all.
This changed in 1907 and women automatically gained the citizenship of their husbands. Immigrant wives became Americans through their American husbands but not vice versa; an American woman married to an immigrant would lose her American citizenship and gain his, so male immigrants effectively could not gain US citizenship through marriage to American wives.
Then, with women’s right to vote going through, the Cable Act of 1922, (or “Married Women’s Act,”) came into existence and women had now some say in the matter of their own citizenship.
US Immigration History Misogyny:
US immigration history is full of racism and nationalism but is rooted in misogyny. Just like LGBT people were officially still altogether excluded from US immigration until 1990, the actual sex-stereotyping that homophobia is rooted in, misogyny, has legal gender discrimination at its core since the days of the very US constitution, (from which women were excluded specifically by not having voting rights. And there is a crucial link between the right to citizenship and the right to vote of course. Citizenship is rooted in the idea of selfhood, individuality, property rights and free choice, and the right to vote stems from that.)
It was misogyny in particular that was behind one of the earliest anti-immigration legislations drafted with the Page Bill of 1875, preventing “single women” from immigrating, for being basically prone to “prostitution, and pregnancy,” because of the very “nature of being women,” and “unmarried,” (targeted particularly at Chinese women at the time.)
(And I am personally convinced of a common denominator behind homophobia and misogyny, and it has nothing to do with LGBT people’s sexual practices in particular but with fear of femaleness, specifically sexually.)
It is quite easy to make the mistake of separating gender inequality from all other inequality, and further not recognize the link between misogyny and homophobia, and so make LGBT rights an unimportant issue within much larger racial, ethnic, and class inequality problem.
But one must understand that the concept of a minority is based on an inequality principle, and is not a numbers game. LGBT people will always be smaller in numbers, this should not ever limit their rights as human beings.
LGBT US Immigration Exclusion Policy History:
In effect, up until 1990 LGBT people couldn’t immigrate to the US under a medical clause in the still upheld Immigration and Nationality Act of 1952, (INA 52,) describing homosexuals as “sexual deviants and psychopathic personalities,” and when the American Psychiatric Disorder Association removed homosexuality from its’ official Diagnostic and Statistical Manual of Mental Disorders in 1973, they did not extent that to US immigration law until 1990.
(Technically disqualifying homosexuality as a mental disorder in 1973 should also qualify a gay person for same-sex marriage exactly but this was not the case for American citizens at all, and left a lot of LGBT foreigners unable to immigrate to the US essentially until DOMA article 3 went down in June of 2013, and same-sex marriage became federal law in all 50 states in June of 2015.
And I’ve so far used LGBT indiscriminately, same-sex marriage applies to gay and lesbian people only, not technically for transgender nor bi-sexual people, both whom could be considered fraudulent by immigration, under the Immigration Marriage Fraud Amendment Act of 1986.)
In 1990 a new travel ban replaced the INA 52 though, the HIV travel ban which lasted until 2010.
The Defense Of Marriage Act of 1996 was also a reaction to this lifting of the travel ban in 1990, as well as to the American LGBT movement’s advancing simultaneously in their increasing demands for equal treatment under the law.
(The LGBT military ban “Don’t Ask, Don’t Tell” went into effect in 1994 as well, and in 1996 the Illegal Immigration Reform and Responsibility Act, IIRIRA, enforcing 3- and 10-year bans from re-entry to the US for “visa-overstayers.”)
The fact that marriage in general is pushed as last and only option is a real problem, and then excluding certain people from that already narrow option, and for the reason that homosexual love is somehow invalid, is nothing less than criminal.
The institution of marriage as an exclusively heterosexual privilege has nothing to do with one’s moral character and everything to do with federal discrimination based on sexual orientation.
It also constitutes as sex discrimination, even if not applying to one sex in particular, since it prevents anyone of any sex to marry same-sex partners.
LGBT exclusion from immigration and from marriage has always been real government discrimination, and is immoral, misogynist and unconstitutional.
Post-DOMA Retroactive Punishment:
DOMA is down federally since June 26 2015 but how one entered the country always matters, that is “overstayer,” or “without inspection,” besides re-entries, resulting in 3- or 10-year, or sometimes permanent “bars” from future re-entry, (the latter for actually having paid taxes as US citizen.)
Under an immigration system that never operated fairly most people are in fact punished retroactively after law changes which are in reality only security measures.
The immigration exclusion of LGBT people under the Defense Of Marriage Act of 1996, before it got struck down on June 26 2015, was immoral, misogynist and unconstitutional, and in reality US government LGBT and immigrant abuse, and any all post-DOMA backlash to surface is retroactive punishment.
On the IMFA of 1986 and the VAWA of 1994:
The Immigration Marriage Fraud Act Amendment of 1986, (enacted by the Reagan administration in 1986 after the last big “reform” to date, legalizing some 3 millions immigrants at the time,) is an unfair, rigorous and ultimately dangerous law for even heterosexual people, and women within that in particular, an opening in the law for abuse to take place, for at least those first 2 years after the American spouse has filed the application for citizenship sponsorship, up until the foreign spouse’s “Conditional Status” is removed by immigration through an interview.
Or depending on the US spouse’s refusal to sponsor, or changing their mind midway, the abuse can go on indefinitely, and the legalization process reversed at any time.
But for LGBT people during the existence of DOMA it amounted to nothing less than LGBT abuse; an opening in the law for both LGBT- and women’s abuse to take place.
The Violence Against Women Act of 1994, the only defense existing against abusive marriages under immigration, had never qualified for LGBT people before, (and only does for same-sex marriage couples since 2013.)
The Immigration Marriage Fraud Act of 1986 punishes those LGBT immigrants who specifically became victims of abusive, heterosexual US citizen spouses, (that is really specifically lesbians married to American men,) in “mixed orientation” marriages (where one of the spouses is heterosexual, the other homosexual.)
How does a government even define marriage fraud when it cannot even accurately define marriage, and thinks of it exclusively in heterosexual, heteronormative terms, as the union of one man and one woman, and ultimately for the purposes of procreation?
Ultimately it entirely comes down to this, your ability to be and stay legally in the US, because of the Immigration Fraud Act of 1986, depends solely on your ability to fall in love and have an American citizen fall in love with you, and stay in love enough to be married and get sponsored and remain in marital bliss for at least those 2 required years of “Conditional Status.”
Your ability to be and stay in the US legally as LGBT person is completely cancelled out under the Defense Of Marriage Act of 1996.
And so even post-DOMA an LGBT person, who was in fact married, has to prove they did not marry for immigration purposes.
The marriage being “bona fide” is a major requirement to qualify for the Violence Against Women Act, (and the VAWA application also has to be filed within 2 years of a possible divorce, so there is a considerable time limit and element of danger involved in this process.)
It is very hard to report someone who has threatened to “out” one as homosexual to immigration, exactly as a way of “extortion,” when all along that constitutes marriage fraud, (a federal felony, under the Immigration Marriage Fraud Act of 1986,) and even more ironic especially when most of the violence then also takes place exactly because one is not “only” a woman but also specifically lesbian, and men use the combination of anti-immigration legislation and federal LGBT discrimination against one to actually trying to “straighten” one out, “make one heterosexual,” make one “accessible to sex with men.”
Being lesbian in an opposite sex marriage is a specifically dangerous combination, and one which does not make one a fraud but a victim exactly of forced marriage, of anti-LGBT, anti-women, and anti-immigrant legislation and of the individuals who enforce it through heteronormative, heterosexual marriage.
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And please check out my other articles at medium.com/@gabriellabregman, on mainly LGBTQ- and Immigration Issues, and the State of Women and LGBTQ People in Film, and at medium.com/queerwomenfilmmakersmagazine , on Lesbian/Queer Film and Intersectional Feminism as well as Queer Female Sexuality and Gender Identity.
Here are a few titles:
A Note on the State of Women in Film (2016)
A Few Notes on LGBTQ Filmmaking (2017)
On ‘Moonlight’ and the Subject of Positive Representation (2017)
The 2016 Valentine’s Day Filmmakers Manifesto (2016)
THE ROOT CAUSE OF MISOGYNY, AND THE NECESSITY OF FREE WILL(Gender Binary System notes, part 1 of 7)
THE MALE AND FEMALE BRAIN, AND THE CAUSE OF TRANSGENDERISM (Gender Binary System notes, part 2 of 7)
THE REASONS I AM NOT TRANSITIONING (Gender Binary System notes, part 3 of 7)
MY PRONOUNS: THEY/THEM/THEIRS (Gender Binary System notes, part 5 of 7)
ON LOOKING ANDROGYNOUS THROUGHOUT MY YOUTH, WHILE ALSO BEING GENDER NONCONFORMING (Gender Binary System notes, part 6 of 7)
Click for Complete List of Articles (2016)
My name is Gabriella Bregman, I am a Hollywood-based writer, filmmaker, producer, currently in post-production of a feature documentary called ‘The Queer Case for Individual Rights,’ through my film production company ‘Bregman Films.’
You can find me mostly on Facebook for right now, (facebook.com/gabriellabregman,) where I also maintain a Facebook Group called ‘Queer Women Filmmakers and Writers - Los Angeles’
In September of 2017 I founded a nonprofit organization, ‘Queer Women Filmmakers Magazine,’ a Media Site and Magazine Publication for Queer Women Filmmakers.
In early 2018 article submissions will be accepted for paid publication on the site and in the print version, (quarterly.)
The publication medium.com/queerwomenfilmmakersmagazine exists in conjunction with the Queer Women Filmmakers Magazine website queerwomenfilmmakersmagazine.org
