Out of bounds: gender outlaws, immigration & the limits of assimilation

• Author: Lauren M. Desrosiers
• Position: Visiting Assistant Professor, Immigration Law Clinic, Albany Law School
• Pages: 117-157

OUT OF BOUNDS: GENDER OUTLAWS, IMMIGRATION &

THE LIMITS OF ASSIMILATION

LAUREN M. DESROSIERS*

ABSTRACT

Queer and transgender Americans have secured substantial federal protec-

tions in the past decade, from United States v. Windsor’s takedown of the

Defense of Marriage Act to Obergefell v. Hodges’s guarantee of marriage

equality to Bostock v. Clayton’s affirmation of the inclusion of queer and trans-

gender identity in Title VII protections. Other recent developments, including

new state-level laws protecting the rights of trans/nonbinary individuals, as

well as a federal embrace of third gender markers on United States passports,

have expanded foundational protections. Although mainstream acceptance of

queer and trans identities has grown substantially in the past several decades,

the Supreme Court’s 2022 Dobbs v. Jackson Women’s Health decision high-

lights the precarity of these protections. Yet queer and trans people continue to

confront regressive homophobic and transphobic laws and policies as well as

an epidemic of private and public violence and discrimination throughout the

United States. Despite these protections, queer and trans noncitizens confront a

very different regime than the one their United States citizen counterparts face.

Recent developments have opened doors to queer and transgender noncitizens,

such as access to marriage-based immigration; yet these avenues primarily

benefit gay cisgender individuals, who can align with the mandates of a cishe-

terosexist immigration regime, while continuing to exclude those who are less

able—or less willing—to assimilate into the cisheteronormative American

ideal. This Article examines how the expansion of cisheteronormatively anch-

ored rights leaves out queer and trans noncitizens along two axes: access to im-

migration benefits and access to identity. After reviewing these two axes along

which queer and trans noncitizens experience disparate treatment, the Article

concludes that assimilationist advocacy strategies for rights of queer and trans

persons have led to disparities between queer and trans noncitizens and citi-

zens. This Article further posits that reimagining systems to center the needs of

queer and trans noncitizens reveals the liberatory possibilities of the abolition

of state regulation of gender and sexuality, leading to a safer and more equita-

ble landscape.

* Visiting Assistant Professor, Immigration Law Clinic, Albany Law School. J.D., University of

Michigan Law School; B.A., Bard College at Simon’s Rock. Many thanks to the numerous people who

helped shepherd this Article along its path, including Sarah Rogerson, Keith Hirokawa, Don Herzog,

Amanda Strick, and Christina Wong. I presented an earlier draft of this Article at the 2022 Immigration

Law Teachers & Scholars Workshop and am grateful to the participants for their invaluable feedback, in

particular panel discussants Nicole Hallett and David Thronson. My clients and community have shaped

my views and convictions in countless ways; this Article is for them. © 2022, Lauren M. DesRosiers.

117

INTRODUCTION .............................................. 119

I. THE QUEER IMMIGRANT AND THE FAILED PROMISE OF MARRIAGE

EQUALITY ............................................. 126

A. THE (CONSERVATIVE) CAMPAIGN FOR MARRIAGE EQUALITY ...... 129

B. QUEER AND TRANSGENDER IDENTITY UNDER U.S. IMMIGRATION

LAW ............................................. 134

1. The United States Excluded Queer and Transgender

Immigrants for Most of the 20th Century . . . . . . . . . . . . . . 134

2. Marriage-Based Immigration for Same-Sex Couples

Reinscribes Preexisting Socioeconomic Hierarchies . . . . . 135

a. Cisgender Mono-Oriented Individuals May Face

Fewer Financial Barriers . . . . . . . . . . . . . . . . . . . . 136

b. Current Requirements for Marriages Favor Immigration

from Western Countries . . . . . . . . . . . . . . . . . . . . . . . . . 138

C. TRANSGRESSIVE IDENTITIES BENEFIT LEAST FROM MARRIAGE-BASED

IMMIGRATION ....................................... 139

D. LESSONS & POSSIBILITIES FOR REIMAGINING IMMIGRATION BASED ON

SOCIAL TIES ........................................ 140

II. TRANSGENDER AND GENDER-EXPANSIVE NONCITIZENS & THE PERILS OF

ESSENTIALIZED GENDER .................................... 141

A. EOIR’S FAILURE TO ABIDE BY APPLICABLE LAW AND POLICY

EVINCES SKEPTICISM OF THE LEGITIMACY OF QUEER AND TRANS

IDENTITIES ......................................... 146

1. EOIR Has Failed to Adequately Comprehend Transgender

Identity, Leading to Anomalous Outcomes . . . . . . . . . . . . 147

a. Immigration Judges and the BIA Struggle to

Understand and Respect Transgender Identity . . . . . . 147

i. Federal Law and EOIR Policies Reveal Extensive

Misgendering of and Offensive Language Toward

Transgender Immigrants . . . . . . . . . . . . . . . . . . . 147

B. THE HISTORY OF USCIS POLICY ON GENDER MARKERS SHOWS

AGENCY LAGS BEHIND WIDELY-ACCEPTED MEDICAL PRACTICES FOR

ESTABLISHING GENDER IDENTITY ......................... 150

1. USCIS Forms Remain Outdated Years After Windsor and

Obergefell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

C. THE REAL ID ACT SUBJECTS TRANSGENDER ASYLUM SEEKERS TO

BURDENSOME EVIDENTIARY REQUIREMENTS TO PROVE THEIR

GENDER............ ............................... 153

D. REIMAGINING AN ANTI-ASSIMILATION APPROACH TO GENDER

MARKERS ......................................... 154

CONCLUSION: RESISTING ASSIMILATION ............................. 156

118 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:117

Cuando vives en la frontera

people walk through you, the wind steals your voice,

you’re a burra, buey, scapegoat,

forerunner of a new race,

half and half—both woman and man, neither—

a new gender.. .

—Gloria Anzaldúa, To live in the Borderlands means you

in BORDERLANDS/LA FRONTERA

1

INTRODUCTION

The United States (U.S.) has long compelled immigrants to adopt the values

of, and conform to, the dominant mainstream American culture. Arguments in

favor of more multicultural models of immigration are becoming more prominent

as the public conversation around immigration, culture, and heritage gain nuance

and complexity. Yet resistance or failure to assimilate—and to publicly appear as

outside the status quo—continues to elicit racist and xenophobic violence and

derision from nativist segments of the American public.

2

The assimilation debate in immigration mirrors a similar thread that runs

through queer and transgender

3

advocacy. Those who support incremental,

assimilationist legal advocacy, which is epitomized by the campaign for marriage

1. GLORIA ANZALDÚA, To live in the Borderlands means you, in BORDERLANDS/LA FRONTERA 118–

19 (1987).

2. One of the most prominent models of immigrant acculturation describes assimilation as the

rejection of one’s former heritage and culture in favor of the adoption of the new culture. See generally

John W. Berry, Acculturation and Adaptation in a New Society, 30 INT’L MIGRATION 69 (1992).

3. I take the “Gender Outlaw” reference in my title from Kate Bornstein’s seminal work on

nonbinary identities: KATE BORNSTEIN, GENDER OUTLAW: ON MEN, WOMEN, AND THE REST OF US

(1994). Throughout this Article, I use the terms “queer” and “transgender” or “trans” in recognition of

the often ambiguous statuses (Osamudia James, infra note 65) and liminal recognition (Lihi Yona,

Liminally-Recognized Groups: Between Equality and Dignity (2022) (J.S.D. Dissertation, Columbia

University)) of these subject groups in contrast to the clarity of status and recognition afforded lesbian

and gay individuals who more closely align to the prevailing static binary stability promulgated by

mainstream culture (for both gender identity and sexual orientation) cemented by cisgender (gender

identity aligns with sex assigned at birth) and straight/heterosexual social norms. I aim to be inclusive in

the use of the terms “queer” and “trans,” and, although many individuals who use different identifiers—

including nonbinary, agender, genderqueer, genderfluid, bisexual, pansexual, asexual, and bigender, as

well as members of the intersex community—may not use the terms “queer” or “trans” to describe their

modes of existence in the world, I endeavor to use these two terms in alignment with common usage

within these communities. Rather than mirroring the umbrella of “LGBTQIAþ” to suggest an

equivalency in varied identity descriptors, which too frequently defaults to meaning gay and lesbian, I

attempt to provide a shorthand that explicitly elicits the “gender troubling” (see generally JUDITH

BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990)), liminal, and fluid

modes of existence that challenge prevailing practices of regulating orientation and gender identity.

Queer here does not function as a catch-all, but rather encompasses a complex and varied alternative to

straight; trans or transgender I use here as a term to encompass not just binary trans people but as an

alternative to cisgender that captures a multitude of gender-expansive existences and celebrates the

complexity and fluidity of non-cisgender identities. In certain instances, I use specific initialisms to

2022] OUT OF BOUNDS 119