LGBTQ caravan migrants may have to ‘prove’ their gender or sexual identity at US border

Among the more than 7,000 people who are part of the migrant caravan – a group of Central American refugees fleeing extreme violence in their home countries – a smaller group of about 80 LGBTQ individuals has broken off from the larger group. These individuals decided to travel separately, in part, due to discrimination they faced from fellow travelers.

They will face a unique set of challenges when they arrive at the U.S. border.

LGBTQ asylum-seekers coming to the U.S. face a dramatically higher risk of violence due to homophobia and transphobia, particularly in immigration detention facilities, where they will likely be sent upon their arrival. A 2013 study by the Government Accountability Office found that transgender detainees account for 1 of every 5 confirmed sexual assaults in ICE custody, even though only 1 out of 500 detainees is trans.

My own research has focused on another hurdle LGBTQ people face when seeking asylum: proving their gender or sexual identity.

Gay? Prove it

Asylum law in the United States allows individuals to seek asylum due to persecution or well-founded fear of future persecution on account of race, religion, nationality, political opinion or membership in a particular social group.

Historically, LGBTQ people were deemed “psychopathic personalities” and statutorily barred from entering the country. It was only 1990 when that law was finally repealed and the Board of Immigration Appeals first declared LGBTQ people eligible for asylum as members of a “particular social group.”

However, in order to qualify under a “particular social group,” you must prove your membership in that group. For LGBTQ people, this means they must prove to a judge or asylum officer that they really are LGBTQ.

So how exactly does someone prove this?

This is precisely the question I have sought to answer in my research.

Gay enough for the courts?

Jose Cruz, a gay man from El Salvador, sits on a bed in his apartment, Oct. 25, 1996, in Hempstead, New York. He was granted asylum in the United States based on his sexual orientation. AP Photo/Rick Maiman
Throughout the 1990s and into the early 2000s, courts often used gendered stereotypes – the effeminate gay man or the butch lesbian – to determine a person’s sexuality in LGBTQ asylum claims. As one immigration judge declared, “Neither [his] dress, nor his mannerisms, nor his style of speech give any indication that he is a homosexual.”

My research suggests that the use of such stereotypes to discredit claimants has decreased substantially in recent years, especially since the Obama administration added new training for new asylum officers on LGBTQ claims. The training directs decision-makers to account for how the asylum-seeker identifies themselves and does not require bodily proof of transgender status, as many other areas of law do.