(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
The United States has a mixed record regarding the ratification of international treaties and agreements which apply to the protection of LGBTI people. The US has ratified the International Covenant on Civil and Political Rights but with five reservations including that there is no private right to legal action in US courts resulting from ratification. The US has signed but not ratified the International Covenant on Economic, Social and Cultural Rights. They have also signed but not ratified the Convention on the Elimination of All Forms of Discrimination Against Women.
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.
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.
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.
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.
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.
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.
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.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
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.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Immigration Equality, Inc., 40 Exchange Place, 13th Floor, New York, NY 10005
Tel: +1 (212) 71 42 904
Fax: +1 (315) 82 54 058
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.
Heartland Alliance Rainbow Welcome Initiative
208 S. LaSalle St, Suite 1818, Chicago, IL 60604
Rainbow Welcome Initiative is a campaign by the Heartland Alliance which works to support LGBT refugees and asylees throughout the process of resettlement in the US. They provide resources for service providers and for refugees and asylum seekers. Their website has a large catalogue of resources including a document on Know Your Rights: Information on Seeking Asylum (for LGBT or HIV positive).
Organization for Refuge, Asylum and Migration (ORAM)
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 SPECIALISTS
Jody L. Herman
Williams Institute Scholar of Public Policy
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.
Researched by: Aine Lambe