Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims

Date01 December 2016
Published date01 December 2016
Legally Queer: The Construction of Sexuality in
LGBQ Asylum Claims
Stefan Vogler
Using court decisions, interviews with legal actors, and ethnographic observa-
tions, this paper analyzes the development of sexual identity classifications for
sexual minorities seeking asylum in the United States and argues that the
adjudication of such claims works to consolidate and regulate sexual identities
but also creates possibilities for recognizing marginalized queer identities. Asy-
lum seekers must prove their sexual identities, and immigration officials must
classify claimants as belonging to a protected group. At the inception of queer
asylum law in 1990, protected categories were highly circumscribed, but the
indeterminacy of the law allowed advocates and asylum seekers to challenge
existing categories and stake out new claims based on their sexualities. Against
the backdrop of extant criticisms of the asylum process for queers, this paper
suggests that the way asylum law has been elaborated, adapted, and inter-
preted, particularly in approximately the past decade, offers possibilities for
making unique identity claims that are not recognized in existing scholarship.
What constitutes sexual identity according to the state, and
how does the law construct sexual identity categories? This paper
addresses these questions through an analysis of asylum claims
Just as asylum seekers can apply for protection from per-
secution based on race or religion, so too can they apply based
on sexual orientation. Though judges have been reluctant to
define sexuality (Goldberg 2002), this is precisely what adjudica-
tors must do when they decide whether an asylum claimant’s sex-
ual identity is credible. Thus, queer asylum provides a glimpse
into how the state understands sexuality. Specifically, it allows us
to see how the state legally classifies claimants with non-
normative sexualities, how those classifications change over time,
and how those categories variously reflect and contest existing
Please direct all correspondence to Stefan Vogler, Department of Sociology, Northwest-
ern University, 1810 Chicago Avenue, Evanston, IL 60208; e-mail: svogler@u.northwest-
For analytical ease I use the term “queer” throughout this paper as a capacious term
encompassing all non-heterosexual identities.
Law & Society Review, Volume 50, Number 4 (2016)
C2016 Law and Society Association. All rights reserved.
Though the United States has historically excluded and dis-
criminated against sexual “deviants” (Canaday 2009; Luibheid
2002; Shah 2012), the “queer exception” to legal protections has
recently begun to fade (Kornbluh 2011). One of the earliest
“exceptions” to disappear was the bar on queers entering the
country, which was repealed in 1990, just months after the Board
of Immigration Appeals affirmed an immigration judge’s decision
to allow a Cuban man to remain in the United States because of
persecution he had faced on account of his homosexual identity.
Since then, asylum has provided entry to the United States for
increasing numbers of queers each year (Gesaman 2009), with
the largest queer immigration organization, Immigration Equality,
reporting that it has helped over 1,100 people seek asylum since
2004 (Millman 2014). Asylum, though not without problems, has
become an important new route to citizenship for queers (Cant
2009; Carrillo 2010; Epstein and Carrillo 2014; Randazzo 2005).
Although asylum directly affects a relatively small number of peo-
ple, it is important to examine developments in this arena
because the law sends larger symbolic messages about what is and
is not acceptable (Ewick and Silbey 1998), including which sexual
identities are state-sanctioned (Bernstein et al. 2009). Moreover,
because queers must prove their sexual identities to attain protec-
tion, asylum highlights processes of normalization and resistance
u 2009; Murray 2014) and the incremental accretion of
legal change within the bureaucratic state.
Despite queer asylum’s rich cultural significance, no systemat-
ic studies examine how understandings of sexuality in this body
of law develop over time in the United States.
Most existing
U.S.-based research relies on a handful of appellate decisions or
a small number of interviews.
My study offers a more nuanced
understanding of legal development by systematically analyzing
153 appellate decisions, but more importantly, by also including
interviews with legal actors and observing asylum hearings in
immigration court where the majority of claims are adjudicated.
Additionally, 18 months of participant-observation with a large
immigration law practice yielded insight into the workings of
administrative immigration law. This methodological approach
allowed me to observe “law in action”—that is, to see how various
legal actors interact with and interpret formal written law on a
day-to-day basis and, in this instance, how legal categories of
See Matter of Toboso-Alfonso (1990).
Though see Berg and Millbank (2009) for a systematic review of cases in the UK,
Australia, New Zealand, and Canada.
Notable exceptions include Bohmer and Shuman (2007), Shuman and Bohmer
(2014), which rely on extensive field work.
Vogler 857
sexual identity are constructed through the interaction of
“bottom up” and “top down” forces.
My findings demonstrate considerable flexibility in bureau-
cratic state categorization. Scholars such as James Scott (1998)
argue that states create broad and abstract classifications to sim-
plify and manage their populations. Yet legal scholars have shown
that such abstract categories allow for many interpretations, and
therefore, that law-on-the-books often looks very different in
practice. Queer asylum claims, where adjudicators often carve idi-
osyncratic classifications out of broad categories, illustrate this
interpretive process as it relates to sexuality. While adjudicators’
categories still often do not perfectly capture the lived reality of
claimants, neither do they force claimants into bureaucratically
over-determined boxes. As administrative law bureaucrats with
substantial autonomy, immigration judges can craft classificatory
schemas that more accurately portray the rapidly changing reality
of sexual identities as they are lived in our society. Consequently,
I show that queer asylum law works as a mechanism for the legal
consolidation of sexual identities but also creates possibilities for
wider recognition of marginalized queer identities. Specifically,
the law requires that petitioners prove their sexual orientations
and subsequently that immigration officials classify claimants as
belonging to a “particular social group.” This requirement results
in the codification of specific sexual identities in asylum law,
which allows state actors to regulate aspects of the asylum process
and render sexual subjectivities visible to the state (Shuman and
Bohmer 2014). At the same time, the flexibility of the “particular
social group” category allows petitioners to stake out new claims
based on their unique sexualities. Thus, asylum serves as a site
for the proliferation of state-recognized sexual identities and may
legitimate broader understandings of sexuality in society writ
large. It also speaks to on-going debates about the etiology of sex-
uality: is it essential and unchanging or constructed and fluid?
These questions of identity have become central in appeals to the
state for lesbian, gay, bisexual, transgender, and queer (LGBTQ)
rights. Though scholars have shown how lawyers frame rights
claims in legal parlance to gain protections for sexual minorities,
much less attention has been devoted to examining how legal cat-
egories of sexual identity are created, maintained, and changed.
This paper begins filling that gap.
In what follows, I first discuss the relationship between sexu-
ality, identity, and law, before providing an overview of the asy-
lum process and critiques regarding sexual identity in asylum
claims—namely that the law views sexuality as immutable, uses
Western identity categories, and prioritizes identity over conduct.
Following a description of my methodology, I reevaluate these
858 The Construction of Sexuality in LGBQ Asylum Claims

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