On Monday a bipartisan group of senators—including rising Republican Marco Rubio (FL), John McCain (R-AZ), Robert Menendez (D-NJ), Charles Schumer (D-NY), Lindsay Graham (R-SC), and Richard Durbin (D-IL)—unveiled a blueprint for immigration reform, which includes such principles as providing the more than 11 million undocumented immigrants in the United States a path to citizenship. On Tuesday President Barack Obama similarly announced his administration’s support for overhauling our broken immigration system in favor of a 21st-century immigration system that creates a road map to citizenship for our nation’s undocumented immigrants, strengthens our borders, cracks down on employers who hire unauthorized workers, and promotes an inclusive and growing economy.
These developments represent a positive step forward for our undocumented immigrants, including those hundreds of thousands who identify as gay or transgender.* While we wait for members of Congress to formally introduce legislation, let’s review the administrative steps President Obama has already taken over the past four years to institute a fairer and more humane immigration system for gay and transgender immigrants and their families. These changes have eased the burdens for this population of immigrants, but only true legislative reform can fully protect them and ensure that all families—regardless of sexual orientation—can stay together.
Here are five common-sense steps the Obama administration has taken to help level the playing field for gay and transgender immigrants.
Putting an end to separating families headed by same-sex couples
For years families have been torn apart by draconian and misguided immigration policies that detain and deport undocumented individuals, even when those individuals have no criminal records and pose no security risk to their community. In 2011, however, the Department of Homeland Security took a significant step toward ending this practice by issuing guidelines that refocus government resources on removing those who pose a threat to public safety or national security—not law-abiding individuals.
Under this policy, known as “prosecutorial discretion,” the department has instructed immigration officials to halt the deportation of individuals with, for example, no criminal convictions and significant “family relationships” in the United States. Homeland Security Secretary Janet Napolitano later clarified that family relationships include “long-term same-sex partners,” largely putting an end to the government’s policy of arbitrarily separating families headed by same-sex couples who pose no threat to their communities. This change marked a significant step in recognizing the existence of undocumented immigrants with same-sex partners or spouses, as well as the obstacles that they face. But while this policy helps take away the fear of deportation for many gay immigrants and their families—at least in theory—it does not grant any form of legal status to those who are undocumented.
President Obama took another decisive step toward keeping immigrant families together in January 2012, when his administration issued new guidance for immigration detention facilities, indicating that immigration officers should not transfer detainees from an area where the detainee has “immediate family.” Before this guidance was issued, immigrants could and would be moved multiple times and far away from their family members with little notice. As with prosecutorial discretion, this transfer guidance includes those families headed by same-sex couples in its definition of a family. Under the guidance, for example, gay detainees will no longer be transferred to a facility in Texas if they are detained in New York and have a same-sex partner or other family in that area.
Giving undocumented immigrants who came here as children a temporary reprieve from deportation
In December 2010 Congress failed to overcome a Republican filibuster and pass the DREAM Act, which would offer conditional permanent residency to a number of undocumented immigrants who were brought here as children. With Congress failing to take action on this issue, in 2012 President Obama used his executive authority to create the Deferred Action for Childhood Arrivals program, which allows young people brought to the United States before age 16 and who are currently under age 30 to apply for a work permit and a two-year reprieve from deportation. Whereas the DREAM Act would create a path to permanent legal status for undocumented youth, deferred action is a temporary administrative program that does not confer permanent residency.
President Obama’s decision on deferred action removes the threat of deportation for as many as 1.76 million aspiring Americans. So far, this policy has been a huge success: In the first four months of the program, nearly 40 percent of immediately eligible participants have had their application accepted for review by the Department of Homeland Security. A significant segment of the undocumented youth who will benefit from this policy are gay and transgender, often facing the dual insecurities of being undocumented and being harassed, discriminated against, or even kicked out of their homes because of their sexual orientation or gender identity. A number of gay and transgender activists—including journalist Jose Antonio Vargas—have spearheaded the DREAM movement, making President Obama’s policy especially noteworthy for gay and transgender people.
Facilitating humane and safe detention standards for gay and transgender immigrants
Sadly, many immigrants who end up in our nation’s detention facilities experience less-than-humane conditions and receive inadequate medical care. The conditions of certain detention facilities have been so poor that they have led to a number of deaths among the detained. Circumstances can be especially harsh for gay and transgender detainees, who experience denial of medical treatment, discrimination, harassment, sexual abuse, and physical violence at the hands of other detainees and detention officers because of their sexual orientation or gender identity.
To prevent such mistreatment, the Obama administration took action in two policy areas. First, the Department of Homeland Security released new detention standards in March 2012 that aim to improve the treatment of gay and transgender detainees. These standards recognize that transgender detainees are especially vulnerable to discrimination and abuse. The standards, for example, ensure that strip searches of transgender detainees will be conducted in private and allows transgender immigrants to continue to receive medically necessary hormone therapy if they received it prior to being detained.
Second, as part of the Prison Rape Elimination Act of 2003, the Department of Homeland Security issued a final rule in December 2012 proposing standards for officials to be trained to prevent, detect, and respond to sexual abuse and assault in detention facilities. This training includes teaching officials “how to communicate effectively and professionally with detainees, including gay, bisexual, transgender, intersex, or gender nonconforming detainees.” The rule also says that detention facilities should consider if an inmate’s sexual orientation or gender identity puts them at risk for sexual victimization and to take appropriate action to prevent abuse should it be necessary. These policy changes mark significant progress in creating a fairer and more just detention system for gay and transgender undocumented immigrants.
Addressing the needs of gay and transgender refugees
Nearly 80 countries have laws that in some way criminalize people who are gay. In five of those countries—Iran, Mauritania, Saudi Arabia, Sudan, and Yemen—the punishment for violating such laws is death. As a result, many gay—and, similarly, many transgender—individuals have fled their home countries and the human rights abuses within them in search of countries that are safer and more tolerant of gay and transgender people.
Many gay and transgender asylum seekers experience unique and significant barriers, however, when they attempt to seek refuge in the United States. One Albanian lesbian who had been threatened with gang rape to cure her of her sexual orientation was denied asylum in the United States because she was young, attractive, and single, not conforming to asylum officers’ stereotypes of what it means to be a lesbian. In these and similar situations, otherwise-deserving refugees may be denied asylum in the United States.
The Obama administration has taken a number of steps to address the unique difficulties that gay and transgender refugees experience when articulating their claims for asylum. In fall 2011 the Department of Homeland Security created a training module on gay and transgender issues that is mandatory for all officers adjudicating refugee and asylum claims. This action ensures that every asylum officer will be trained on appropriate terminology and questions to ask when discussing the deeply personal issue of a refugee’s sexual orientation or gender identity. In addition to this training, the State Department is “funding research on threats facing LGBT refugees and asylum seekers, supporting NGOs that work with LGBT survivors of violence, and strengthening the capacity of UNHCR and other non-government partners.”
Lifting the HIV travel ban
For 22 years the United States prohibited anyone with HIV/AIDS from seeking a visa or a green card to enter the country. This ban on travel was initially created out of fear and ignorance in the 1980s, and it kept thousands of students, tourists, and refugees from entering our borders. It also complicated the adoption of children with HIV, who under the ban were not eligible to enter the United States. In October 2009 President Obama announced that he would overturn the travel and immigration ban against people living with HIV, a process started by his predecessor, President George W. Bush. Two months later the ban was officially lifted. Until President Obama removed the ban, however, HIV was the only medical condition explicitly listed under immigration law as grounds for inadmissibility to the United States.
The president clearly understands that a fair immigration system addresses the needs of gay and transgender immigrants. This is why he and his administration have taken decisive action to remove obstacles for this part of the immigrant population and to promote a fairer and more humane system for all immigrants, regardless of their sexual orientations or gender identities. It is also why the framework for reform President Obama unveiled earlier this week in Las Vegas included changes that would allow same-sex spouses the ability to sponsor their loved ones for residency—a right that different-sex couples already enjoy under existing immigration law.
President Obama has moved the ball forward for our nation’s immigrants. He has at this point, however, exhausted most available administrative avenues for helping gay and transgender immigrants achieve legal certainty and economic stability. It is now Congress’s turn to act and pass legislation that provides all immigrants a path to earned citizenship—gay or straight, transgender or not.
Crosby Burns is a Research Associate for the LGBT Research and Communications Project at the Center for American Progress.
* In this column the term “gay” is an umbrella term for people that identify as gay, lesbian, or bisexual.