DOMA 1996
LGBT
Multiple jeopardy
Cumulative advantage/disadvantage
Immigrant/Immigrant population
Undocumented
Foreign-born/Native-born/Citizen/non-citizen
Marital equality/parity
Life Course
Introduction
In the USA, many LGBT immigrants , both documented and undocumented , are part of a same-sex couple or relationship. As members of multiple minority groups, LGBT immigrants face numerous sociocultural, political, and legal challenges. Among immigrant detainees, LGBT persons face a unique set of issues, with transgender persons being at greater risk because the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) do not recognize detainees by their gender identity, but by their gender at birth (Gruberg 2013a, b, c). LGBT immigrants who immigrated to the USA at a young age and aged here present with different characteristics and challenges than those who immigrated at an older age. For example, those who immigrated as children tended to have an easier path to citizenship than older more recent immigrants.
In this chapter, we present issues that affect LGBT elders who are immigrants . The time line or period of their immigration to the USA and their countries of origin also influences their perceptions and experiences as immigrants. LGBT immigrants may be privileged or disadvantaged depending on their country of origin, race, and age. For LGBT older immigrants, the intersection of identities and the sum of all of their identities influence their interactions within their ethnic community, LGBT community, and the broader community. In this chapter, we offer the reader insight into relevant issues for LGBT immigrants, especially as they age. It is not our intent to categorize or characterize LGBT immigrants, rather to assist the reader to gain an understanding of disparities and inequalities faced by this population across multiple domains.
Defining Immigration Population and Status
Who is an immigrant ? Who are the immigrant populations ? What does it mean to be part of an immigrant population? Does membership confer a status, and if so, how does it compare to the status of non-immigrant populations? In order to explore these questions, important immigration-related concepts must be identified and defined, such as immigrant populations, documented versus undocumented , naturalized versus non-citizens.
Immigrant Populations —Definitions
Definitions of immigrant populations, as well as the criteria that determine these definitions, differ from one country to another. However, according to the Organisation for Economic Co-operation and Development (OECD), the most commonly used definitions are based upon country of birth and nationality (OECD 2013). Using country of birth criteria, immigrant populations are defined as those who live in a country (known as host country) different from that in which they were born. Where nationality criteria are used, immigrant populations are defined as those holding a nationality different from the host country. Under this scenario, a person may be considered an immigrant even if he or she was born in the host country. The criteria used can also reflect the host country’s view of how citizenship may be acquired (OECD 2013). For instance, country of birth criteria reflects jus soli—the right of the soil by which citizenship is automatically linked to place of birth, while nationality reflects jus sanguinis—the right of blood, wherein citizenship is derived from the nationality of the parents. Generally, countries have self-determined paths from “immigrant” to “national” status. Variations exist and depend upon or are influenced by each country’s rules governing how citizenship may be acquired by non-nationals, however defined. Foreign-born persons may acquire citizenship through a naturalization process, while those who do not do so remain non–citizens.
Countries also prescribe the manner in which immigrants may reside legally in the host country. For instance, in the USA, those who follow established rules for migration are known as documented immigrants, while those who do so without legal authorization are considered undocumented immigrants.
According to the US Census Bureau’s American Community Survey (ACS), in the USA, the term foreign born refers to persons who are not US citizens at birth, including naturalized citizens, legal permanent residents, and other classes of migrants such as the temporary (e.g., students), humanitarian (e.g., refugees), as well as undocumented migrants (US Census Bureau: American Community Survey Report 2012b). Native born refers to those born in the US, Puerto Rico, or the US Island Area, or those born abroad to at least one parent who is a US citizen (ACS 2012b). In 2012, the total US population was 313,914 million (Census Bureau 2012a, b; OECD 2013a). According to the 2010 ACS, about 13 % of US population (40 million) is foreign born. Department of Homeland Security estimates indicate that approximately 11.5 million are undocumented (Hoefer et al. 2011). OECD data reflect a growing trend in immigrant populations , with higher immigrant numbers for countries such as Canada, Australia, Israel, and New Zealand that range from 20 to 40 % of their total populations (OECD 2013b).
In sum, immigrant populations include foreign-born persons or persons who still hold a nationality other than that of the host country; they may be documented or undocumented , and their numbers continue to increase (OECD 2013b).
Immigrant Populations—Status
Immigrant populations often exhibit demographic and socioeconomic differences when compared to their native-born counterparts. Status differences within immigrant populations exist, for instance, by race, country of origin, length of stay in the host country (recent or earlier immigrants), and whether they are documented or undocumented aliens (OECD 2013). The vast majority (about 2/3rds) of immigrants have come to the USA since 1990. Generally, compared to native-born populations, immigrants are more likely to be at a disadvantage socioeconomically: with lower levels of education, higher levels of labor force participation, lower income, and a higher likelihood of living in poverty (ACS 2010).
Immigrant LGBT Elders
The growth in both the aging and immigrant segments of the US population give credence to an increased interest in LGBT elders. As both segments grow as a percentage of the overall population, we can expect a parallel increase in the LGBT population. For those involved, the key issues that affect immigrant populations and aging populations join those affecting LGBT populations. Consequently, immigrant LGBT elders are likely to face multiple jeopardy owing to disadvantages due to age, immigrant status, and sexual orientation.
Elders, persons aged 65 and over, comprise approximately 13 % of the US population (US Census Bureau 2012). In the absence of precise data about the number of foreign-born LGBT persons in the USA, the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at UCLA School of Law (Williams Institute) conducted an analysis of data from multiple sources including the Pew Research Hispanic Center, Gallup Daily Tracking Survey data, and the US Census Bureau’s 2011 American Community Survey. As reported by Gates (2013), this analysis estimates that there are approximately 804,000 foreign-born LGBT in the USA, of which about 70 % (637,000) are documented and 30 % (267,000) are undocumented. Of that number, it is estimated that persons 55 and over make up about 22 % of immigrants who self-identify as LGBT, while among the undocumented, the number is about 4 % (Gates 2013). Because many LGBT individuals are reluctant to identify as such, these estimates may be undercounts. LGBT elder immigrants (both self-identified and otherwise) can be broadly divided into two groups—recently arrived immigrants and earlier cohorts of immigrants who have aged in place within their host country. Together, they make up a significant segment of the US population. This fact, coupled with the fact that there are currently a large number of younger LGBT immigrants who will likely age in place over time, makes a focus on this group pertinent and timely.
Immigrant LGBT Elders—Status
Similar to other immigrants, LGBT elders exhibit differences when compared to native-born populations. In presenting the data on population estimates and other demographic information, the Williams Institute reviews a number of socioeconomic factors associated with LGBT adult immigrants (individuals and same-sex couples) including race, gender, labor force participation, levels of employment, and annual income (Gates 2013). Some key findings are presented below:
About 150,800 people are LGBT immigrants aged 55 and over. Of this number, an estimated 140,800 are documented, while 10,000 are undocumented.
LGBT immigrant elders are more likely to be Hispanic, Asian, or Pacific Islander.
Fourteen percent (14 %) of same-sex couples include a foreign-born partner or spouse. Same-sex couples include an estimated 113,300 foreign-born individuals (naturalized or non-citizens). Among same-sex couples, 54,600 are non-US citizens; 24,700 are bi-national; and for 11,700, both partners were non-citizens.
Among same-sex couples aged 55 and older, 23 % (13,800) include a foreign-born person who acquired naturalization status, while 10 % (5,600) include a person who is a non-citizen.
Non-citizens in same-sex couples are more likely to be economically disadvantaged.
Male same-sex couples have lower median annual personal incomes despite higher educational levels, regardless of labor force participation.
Female same-sex couples report higher median annual personal incomes compared to those in different-sex couples, regardless of labor force participation or citizenship status.
Among LGBT couples, both male and female have higher labor force participation rates (Table 13.1).
Table 13.1
Median annual personal income by sex, couple type, and citizenship status
Same sex
Different sex
Non-citizens
Naturalized
Native born
Non-citizens
Naturalized
Native born
In labor force
Men
14,000
40,000
48,500
26,000
45,000
50,000
Women
22,400
45,000
38,500
16,800
30,000
31,500
Not in labor force
Men
0
13,000
14,000
7800
15,600
24,000
Women
1500
28,000
11,500
0
3,100
6600
Countries that Recognize Same-Sex Relationships for Immigration Purposes
Like other migrants, LGBT individuals migrate for many reasons: personal, political, religious, and economic. LGBT individuals may also migrate to avoid persecution from their family, community, and even government because of their sexual orientation or gender identity (Tabak and Levitan 2013).
Although there are no international legal instruments tailored to offer protection for LGBT human rights, there has been an increasing trend toward recognition of the necessity and importance of assuring that human rights extend to LGBT populations. In a paper discussing global human rights and LGBT migrants, Tabak and Levitan (2013) state that this increased awareness can be seen in the actions of international and regional legal bodies who have sought to extend the application of human rights principles to LGBT populations. For instance, Tabak and Levitan (2013) cite the example of the United Nations Human Rights Committee that extended the principles of the International Covenant on Civil and Political Rights (ICCPR) to LGBT persons by expanding the reference to “sex” in Article 26 to include sexual orientation. They argue that such actions are important because of their potential to impact states that are parties to these treaties, and as such are required to be compliant with their provisions.
Protecting the human rights of LGBT immigrants is important because even when they leave their home countries, they may still face discrimination and disadvantage in host countries. In many countries, including those with conducive environments, LGBT persons may face discrimination and persecution especially from immigration laws, policies, and practices.
Discussion Box 1
How have human rights agencies/bodies attempted to extend their provisions to cover LGBT populations? Look up the agencies or bodies provided below. What do you think?
(a)
Committee on Economic, Social and Cultural Rights http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx
Immigration laws and their application to LGBT populations vary across countries in terms of their nature, scope, and recognition of same-sex relationships. These laws run the gamut from non-recognition of same-sex relationships to the creation of special legal status to marriage equality provisions (Human Rights Watch: Immigration Equality (HRWIE) 2006). According to Human Rights Watch: Immigration Equality data (2006), only nineteen countries recognize lesbian and gay relationships for immigration purposes. These recognitions came about in these countries in a variety of ways, including legislative action, court-mandated changes, national referendum, and immigration policy reform (HRWIE 2006).
Until 2013, the USA was not one of the nineteen countries that recognized same-sex couples. However, recent challenges to the Defense of Marriage Act (DOMA 1996), and the Supreme Court decision upholding the unconstitutionality of Section 3, have opened the door to reviewing the treatment of same-sex unions to ensure parity with opposite-sex unions for immigration purposes. In a statement on July 1, 2013, Secretary of Homeland Security Janet Napolitano stated,
“… I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Thus, at the time of this writing, the US now recognizes “marital unions” including those legally valid in other jurisdictions, for immigration purposes.
Table 13.2 presents a list of countries that recognize same-sex relationships for immigration purposes, rights conferred, and some of the criteria required to do so.
Table 13.2
Countries that recognize same-sex relationships for immigration purposes
Country | Who | Status | Rights | Criteria (examples) | |
---|---|---|---|---|---|
1. | Australia | Lesbian or gay partner | Interdependency visa | Same as for heterosexual common-law spouses | Exclusive relationship; 12-month duration |
2. | Belgium | Legal marriage/spouse; Partnerships (includes other countries) | Visa Type D; Type C (with view to marry) | Extended stay for more than 90 days; Same for heterosexual relationships | Stable relationship; Family unification |
3. | Brazil | Partners | Visas: – temporary – permanent – concubine | No comprehensive national-level acknowledgment; Some rights recognized by the federal government (e.g., rights to social security and pension) | Legal/formal relationship; Proof of stable relationship; Certificate of concubinage |
4. | Canada | Spouses, common-law partner, conjugal partner | Broad immigration rights | Same as for different-sex couples | Marriage in Canada; Partner age = 16 or older; Cohabitation for at least a year to establish conjugal status |
5. | Denmark | Registered partner, spouse or cohabiting partner | Typically residence permit in either foreign partner’s country, or Denmark depending on individual’s circumstances | Same general immigration policies apply | At least 24 years old; Ability of resident to provide support; Attachment to Denmark more than any other country |
6. | Finland | Spouse (includes registered partner), cohabitant | Residence permit, fixed term or permanent, depending on individual’s circumstances | Residence permit; Migration benefits | Family ties; 18 years old; Proof of marriage, partnership, or cohabitation |
7. | France | All unmarried couples (same or different sex) | Legal status, with some rights of marriage | Residence: – Temporary (post-I year wait period, renew yearly) – Permanent (after 5 years; renewable every 10 years) | Civil Solidarity Pact; Personal connections to France |
8. | Germany | Registered life partner | Residence permit Long-stay visa | Most rights enjoyed by heterosexual couples; Equal immigration rights | Sponsor must be citizen or permanent resident; Able to provide financial support |
9. | Iceland | Registered partnerships; Cohabiting partner; Spouses | Permit to stay; Permanent residence (spouses) | Same immigration rights as married spouses | 18 years old; Cohabitation for at least 2 years, plus intent to continue if unmarried |
10. | Israel | Partners | No national-level legal status | 1-year work permit; Temporary residence (yearly renewal); Permanent residence after 7 years | Evidence of sincere, genuine relationship |
11. | The Netherlands | Partner through civil marriage, registered partnership, cohabitant agreement | Broad immigration rights | Provisional residence permit (first step); Full residence permit | Both at least 18 years old; Sponsor must be Dutch citizen, permanent or legal resident; Provide financial support |
12. | New Zealand | Partner through civil union, marriage, or de facto union | Same as for married couples | Work visa; Residence visa; Residence permit | Age 18 (16 with legal consent of parents/guardians); Genuine, stable, committed relationship; 12-month cohabitation. Citizen/resident as sponsor |
13. | Norway | Spouse, registered partner (at least 3 years), cohabiting partner | Most rights enjoyed by heterosexual couples | Immigration rights available | Over 18 at time of marriage/registered partnership; Proof of intent to/live in Norway; Sponsor can support financially; 2 years of permanent and established relationship (for cohabitation) |
14. | Portugal | Partners in de facto unions Cohabitants (more than 2 years) | Same status as common-law spouses (less than heterosexual marriage); Relationship recognized for immigration purposes | Temporary authorization for residence (2 years, renewable); Permanent residence (post-5 or 8 years depending on partner’s nationality) | Sponsor must be citizen or permanent resident; Proof of unmarried status; Common-law partnership for more than 2 years |
15. | South Africa | Spouse (marriage/civil union); Permanent cohabitation | Full title and rights of marriage under the law; Parity under immigration law | Same immigration rights as married persons | Permanent relationship; Cohabitation; Mutual financial and emotional support; Proof via affidavit and notarial contract |
16. | Spain | Spouses | Civil marriage code includes same-sex couples | Same rights as married couples | Valid marriage with Spaniard, or between two resident foreigners |
17. | Sweden | Spouses, registered partners, cohabiting partners | Recognizes same-sex relationships; Same rights as married opposite-sex couples | Residence permits (yearly, first 2 years); Permanent residence permit | Family ties; Proof of relationship |
18. | Switzerland | Spouses (marriages, civil unions); Registered partners | Immigration laws apply. | 3-month visa (to obtain registered partnership); Type B residence permit (annual renewal if relationship persists); Type C resident permit (after 5 years) | Proof of union (Recognizes unions valid in other countries) |
19. | UK | Civil partners; Spouses | Eligible for immigration same as heterosexual marriage | Entry clearance (for proposed civil partnership); 2-year residence (post-partnership registration); Indefinite Leave to Remain; Temporary residents can apply for permanent residence with civil partners | Civil partnership (plus those formalized in other jurisdictions); At least 16 years old; Not in partnership or marriage to another; Genuine/ongoing relationship; No reliance on public funds |
20. | USA | Partners in marital unions; Fiancés/fiancées | Treat same as opposite-sex marriages | Immigration laws apply with equal effect; Recognizes marriages/unions legally valid in other jurisdictions | Marital unions; Sponsor must be citizen or legal permanent resident |
Discussion Box 2: A Tale of Two Same-Sex Couples
Review the following cases:
(a)
Richard Adams and Anthony Sullivan—Parties in the first federal lawsuit seeking equal treatment for a same-sex marriage in US history.
(b)
United States v. Windsor (2013)—Supreme Court decision on Section 3, Defense of Marriage Act, 1999.
In what ways were these cases similar or different? What was the outcome in each case, and what do you think explains the difference? Analyze the impact of these decisions.
History of Research and Practice—LGBT Immigrant Elders
The history of research and practice pertinent to the topic of immigrant LGBT elders is an extremely abbreviated one. This should perhaps not be unexpected, given that the history of research and practice in relation to LGBT elders in general is relatively truncated. In the USA, LGBT baby boomers, who are reaching retirement age, are in effect the first generation of elders who have “come out” in our history (Insight Center for Community Economic Development 2012). As a result of the lack of coming-out among LGBT individuals, particularly among elders who grew up in a time when being LGBT was unheard of, the opportunities for research have been relatively limited. However, we are now experiencing a tremendous increase in the number of “out” LGBT elders. By the year 2030, it is expected that the number of LGBT older adults in the USA will increase to more than four million (Fredriksen-Goldsen et al. 2011).
Despite the recent recognition of the increasing number of LGBT elders, some of whom are immigrants, research efforts have lagged behind. Of the available research on LGBT elders, immigrant LGBT elders have rarely been included. Surprisingly, organizations that are designed to provide resources and conduct research with LGBT elders rarely have information for or about immigrant LGBT elders. However, several do provide information on best practices in working with LGBT elders, some of which can be used for working with immigrant LGBT elders. There are still many, many unanswered questions that require immediate attention.
In light of several recent policy changes regarding immigration, concerns surrounding immigrant LGBT elders are making their way to the forefront, thus the impetus for this chapter within this handbook and future research. The remainder of this chapter will highlight what is known about immigrant LGBT elders, address some of the major concerns surrounding this population, and propose suggestions for future research and practice.
Research Box 1
As mentioned in the chapter, there is a paucity of scholarly research regarding LGBT immigrant elders. Within this chapter, there are references to many issues that are worthy of research. Select a topic specific to LGBT immigrant elders and develop potential research projects. Think about the title of the research project, the objectives, research questions, methods, potential participants, and recruitment of participants, as well as the type of results you would anticipate. Also, think about any potential service delivery implications that your research project may have.
LGBT Immigration Issues
LGBT individuals face many issues as they age; for those who are immigrants , there are additional unique issues. Further compounding issues that LGBT elders may face, many federal, state, or local agencies that provide services for older adults are not designed to address the specific concerns of LGBT elders. In fact, several studies have found that widespread homophobia exists among individuals and organizations entrusted to care for America’s older adults (National Gay and Lesbian Task Force Foundation 2011).