On this page, you will find:

Legal Framework

 

The US Supreme Court has been the main source of expansion of LGBTI rights. Lawrence vs. Texas 2003 resulted in nationwide legalisation of same-sex sexual activity between consenting adults. Same-sex marriage was legalised nationwide in 2015 following the decision of Obergefell vs. Hodges. This decision has also had a positive impact on adoption by same-sex couples.

Anti-discrimination laws vary from state to state. Twenty-two states outlaw discrimination on the basis of sexual orientation and nineteen outlaw discrimination based on gender identity or expression. This map provided by the American Civil Liberties Union provides detailed state-by-state information.

Hate crimes based on sexual orientation and gender identity are also punishable by federal law under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act 2009.

The “don’t ask don’t tell” policy in the US military was ended in 2011 and those in military service are now free to express their sexual and gender identity openly.

Only male and female gender identities are recognised for the purposes of official documentation in the US, except for in California, where a third, non-binary gender category is recognised on birth certificates, driver’s licenses and identity cards. The process and requirements for changing gender on official documents vary from state to state. In California, Washington, Oregon, Utah, Wyoming, South Dakota, Minnesota, Iowa, Missouri, Mississippi, Michigan, Indiana, New York, Vermont, New Hampshire, Connecticut, New Jersey and Maryland sexual reassignment surgery is not required in order to alter the sex on a birth certificate. In Nevada, Montana, North Dakota, Arizona, New Mexico, Texas, Colorado, Nebraska, Louisiana, Arkansas, Wisconsin, Illinois, Kentucky, Virginia, West Virginia, Pennsylvania, Massachusetts, Maine, Rhode Island, North Carolina, South Carolina, Georgia, Alabama and Florida sexual reassignment surgery is required in order to change the sex on a birth certificate. In Idaho, Kansas, Oklahoma, Ohio and Tennessee it is not possible to alter the sex on a birth certificate.

For more detailed information on the protection of LGBTQI+ rights in the United States, visit the United States ILGA World Database.

Homosexuality/Bisexuality
Public attitudes to LGBTI persons in the US are quite polarized throughout a majority of the US. The law supports the protection of LGBTI persons. However, campaigners highlight shortcomings which still exist.

This report by academics at UCLA highlights issues around the treatment of LGBTI people by the police. The key points it highlights are concerns around hostile attitudes and verbal abuse from officers and in fewer cases instances of physical assault or sexual harassment. These issues exist in particular for people of colour or transgender and gender non-conforming people.

ORAM’s publication Rainbow Bridges shares the rare experience gained by ORAM during its yearlong pilot program assisting resettled LGBTI refugees in the San Francisco Bay Area. The refugees assisted had fled torture, severe harassment, and even execution in their countries of origin.

While many people have been granted asylum on the basis of their sexual or gender identity, there are no precedential asylum claims recognizing bisexuals as a particular social group. Additionally, public attitiudes and the state’s capacity to protect varies significantly depending on the region of the U.S.

For more information, explore this Non-Discrimination Legal Map of the United States.

 Transgender persons
Similar to the situation for Homosexuality/Bisexuality, the attitudes and state policies around transgender persons varies significantly by state.

Regardless, violence against Transgender and Non-binary people is on the rise in the United States with a series of restrictive laws implemented across the country criminalizing the transgender community. For a map of attacks on LGBTQI+ rights by legislators across the country, explore this state-by-state interactive map from the ACLU.

Matter of Toboso-Alfonso
The applicant was a gay man from Cuba who was persecuted by state actors in his home country for his sexuality. Refugee status was denied to him due to a previous unrelated US criminal conviction. However, under the rule of non-refoulement, his deportation was withheld and he was able to remain in the US. This case set a precedent for sexuality being considered as a particular social group.

Soto Vega vs. John Ashcroft
The applicant was a gay man from Mexico who had suffered past sexual and physical abuse by a police officer because of his sexual orientation. The key issue at hand in the case was the fact that he had returned to Mexico multiple times to raise money in order to permanently relocate to the US and whether this should be held against his case. The Court found that the trips did not render him ineligible for asylum.

M.C vs. Aaronson
This case involved an intersex child who had surgery performed on him at birth to give him female genitalia. His adoptive parents sued the hospital and the doctors for violating his constitutional rights by performing this unnecessary surgery as the child later identified as male. While the case was set to be a landmark one, it was dismissed by the 4th Circuit Court of Appeals in January 2015.

Obergefell vs. Hodges
This was the Supreme Court case that ruled that same-sex couples had a right to marry and to deny this right was a violation of their right to equality under the US constitution. The decision was binding on all US states.

Simioni vs. Holder
This is a good unpublished decision remanding the case of a gay HIV-positive Brazilian for the court’s failure to consider HIV as a possible ground for persecution.

Organisations supporting LGBTQI+ individuals

Website
Facebook
Address: 208 S La Salle St, Ste 1300, Chicago, IL, United States, Illinois
Tel.: +1 312-660-1300
Email: HAInternational@heartlandalliance.org

Rainbow Welcome Initiative is a campaign by the Heartland Alliance which works to support LGBT refugees and asylum seekers throughout the process of resettlement in the US. They provide resources for service providers and for refugees and asylum seekers.

Website
Address:  40 Exchange Place, 13th Floor, New York, NY 10005
Tel.: +1 (212) 71 42 904 /+92-337-9216208  
Email: legal@immigrationequality.org

Immigration Equality is a national organisation that advocates for full equality for LGBT and HIV-positive individuals under U.S. immigration law. They do both policy work on the Uniting American Families Act, the HIV ban, and other issues, and in the area of asylum they do direct legal representation, run a pro bono project, and provide mentoring for other attorneys. LGBT foreign nationals are provided with up-to-date information about immigration law via training, informational materials, and by answering email and telephone inquiries. Immigration Equality run a pro bono asylum project to assist LGBT and HIV-positive asylum seekers to find free or low-cost legal representation. They provide technical assistance to lawyers working on sexual orientation, transgender identity, or HIV status-based asylum applications, or other immigration applications where the client’s LGBT or HIV-positive identity is at issue in the case. They also maintain a list of LGBT/HIV-friendly private immigration attorneys to provide legal representation for those who contact them. Please contact them at the details above. 

Website
Facebook
Instagram
Address: 1325 Quincy St NE Ste A1 , Minneapolis, MN, United States, Minnesota
Tel: +1 612-682-5044
Email: info@oraminternational.org

Founded in 2008, ORAM – the Organization for Refuge, Asylum and Migration is a pioneer in advocating for the protection and well-being of extremely vulnerable LGBTIQ refugees and asylum seekers globally. With the help of supporters and partners, ORAM provides legal assistance, advances economic inclusion through livelihood programs, build coalitions, champions the rights of LGBTIQ asylum seekers and refugees on the global stage, provide critical emergency response to the communities they serve and promotes sustainable solutions. Visit their online resource pages at https://oramrefugee.org/seeking-help/

Country of Origin experts in LGBTQI+ rights

Email: hermanj@law.ucla.edu
Tel:(310) 267-4382

Jody L. Herman holds a Ph.D. in Public Policy and Public Administration from The George Washington University. Her doctoral dissertation focused on the development of anti-discrimination protections in public facilities for transgender and gender non-conforming people.  She has worked in the non-profit sector on research, advocacy and direct service provision in both the United States and Mexico, working in particular on issues of poverty, women’s rights, and anti-discrimination policy development. She can provide services pro-bono.

United States Legal Assistance

Find organisations providing legal assistance to refugees in the United States.

United States COI

Find United States Country of Origin information (COI) experts, reports, commentaries, and relevant documents. 

We are always looking to expand the resources on our platform. If you know about relevant resources, or you are aware of organisations and/or individuals to include in our directories, please get in touch.

Last updated May 2023