Recent estimates suggest that there are close to 190,000 undocumented adult LGBT Latino immigrants in the United States. While most undocumented immigrants from Latin America are fleeing violence and poverty, the situation for LGBT individuals is even more acute in terms of the conditions they face in their home countries, which include family and community rejection and violence and discrimination.
The threat of violence does not end once they reach the United States. The National Coalition of Anti-Violence Programs—a group of organizations dedicated to ending all forms of violence against and within gay, lesbian, bisexual, transgender and HIV-affected communities—reported a 50 percent increase in reports of violence against LGBTH (the H meaning HIV positive) undocumented individuals between 2012 and 2013.
If not for the efforts of activists and advocacy organizations, such as the Human Rights Campaign, Lambda Legal, and Immigration Equality that raise awareness of undocumented LGBT immigrants and advocate for their legal protection and non-discrimination, their situation would be altogether bleak.
Undocumented LGBT immigrants in the U.S. face a host of challenges, among them job insecurity, low wages, lack of access to health care services and coverage, and separation from family members and loved ones through deportation or detention. While data on undocumented LGBT immigrants is scarce, there is considerable evidence that both LGBT people and undocumented immigrants suffer high levels of discrimination and exploitation in the workplace along with lower wages.
They are also likely to forego medical treatment since they are barred from accessing federal health care benefits or purchasing insurance—even at full cost—through the health care exchanges set up under the Affordable Care Act.
For LGBT immigrants held in detention centers, conditions are especially dire. They frequently experience discrimination, harassment, and mistreatment because of their sexual orientation and gender identity. Administrative segregation (the equivalent of solitary confinement) is frequently used as a safety measure which subjects LGBT immigrants to undue psychological hardship.
Transgender and HIV positive immigrants are particularly vulnerable since many are denied or have great difficulty in obtaining access to appropriate and necessary health care. A study by the University of California Irvine found that sexual assault is 13 times more prevalent among transgender detainees than among the prison population as a whole.
The recent Supreme Court decision in United States v. Windsor that struck down Section 3 of the Defense of Marriage Act, now makes it possible for U.S. citizens and legal permanent residents to sponsor their same-sex spouses for family-based immigration. This is a remarkable achievement and advance for LGBT rights. Nevertheless, fully remedying many inequalities LGBT immigrants still face requires comprehensive immigration reform.
Even provisions for asylum have been insufficient. LGBT asylum seekers who do not conform to stereotypes about what it means to be a gay man or a lesbian—non-effeminate gay men and non-masculine lesbians—may be at risk of having their cases dismissed and being deported back to their country of origin. The requirement that asylum seekers must file their petition within one year of entering the United States constitutes an additional barrier to LGBT immigrants—many of whom are often unaware that they could qualify for asylum. The result has been the denial of asylum protections to thousands of otherwise legitimate refugees.
To its credit, the Obama administration has taken steps to address the particular challenges and hardships that LGBT detainees and asylum seekers face. The Department of Homeland Security has issued guidance, rules and regulations that protect the safety and wellbeing of LGBT detainees and ensure that LGBT asylum seekers are treated with dignity and given a fair asylum hearing. These policies must be fully implemented and strictly enforced. The use of alternatives to detention, such as house arrest or ankle bracelets, should also be expanded.
Additionally, Congress and the White House should take legislative and administrative action to ensure that LBGT immigrants are not left in the shadows. Immigration reform should include a path to citizenship, fix and protect family-based migration and grant young people access to education and citizenship. Congress should also pass the Detainee Basic Medical Care Act to remediate substandard medical treatment and prevent deaths among detainee immigrants. Finally, Congress should repeal the one-year filing deadline and allow all people with a well-founded fear of persecution the right to asylum as guaranteed by international law.
As we await the Supreme Court’s decision that will potentially legalize same-sex marriage across the United States, we can draw hope in rapidly changing public opinion about LBGT and immigration issues. For example, two-thirds of Latino voters support allowing same-sex couples equal immigration rights. As the 2016 election swings into high gear we need to ensure that issues affecting our most vulnerable and mistreated populations are not overlooked. Undocumented LGBT immigrants must not be left behind.
