JURIST Guest Columnist, Dara E. Purvis of Penn State Law, discusses the implications of the new Trump Administration visa policy and the general climate around LGBTQ rights...
At the beginning of this month, the Trump administration announced a new policy that same-sex partners of foreign diplomats and employees of the United Nations will only be granted visas if the partners are married. The State Department immediately applied the policy and refused visas to unmarried partners. The Department also told partners who lived in the United States on visas that they must marry by the end of the year or they will lose their visa.
The administration characterized this as bringing the visa policy in line with the Supreme Court’s 2015 Obergefell v. Hodges decision. In Obergefell, the court held that denying marriage licenses to same-sex couples violates the constitution. Since Obergefell, many such policies including domestic partnerships, civil unions, and equitable remedies granted same-sex partners, have been rolled back. The justification for these annulments was based upon the reasoning that if the equitable remedy was made available to address the harm of discriminatory marriage laws, the remedy is no longer needed since such couples may now legally marry.
Requiring same-sex couples to marry to keep receiving benefits they had previously obtained without marriage is part of a domestic trend. States, municipalities, and other entities such as individual employers have made decisions about rescinding previous policies on an individual basis. Moreover, such reversals have drawn criticism. This disapproval comes from both scholars wary of further entrenching marriage as the single foundational relationship upon which benefits are based, and from activists who point out that much of the discrimination that justified such remedies still exists.
However, setting aside the inconsistent domestic reaction, treating visas as a purely domestic issue ignores the obvious practical cruelty of the policy as imposed upon an entirely international group of people. The United Nations has almost 200 member states, and only 12% allow same-sex marriage. Thus, the vast majority of such couples cannot meet the new requirement as they are unable to marry in their home countries.
The Trump administration responded by saying that in such circumstances, case-by-case “workarounds” might be made. But in a significant number of the states that do not allow same-sex marriage, same-sex relationships are stigmatized and even criminalized. Taking any public step to formalize their relationship for purposes of a visa exposes the diplomat and his or her partner to legal sanctions and violence at home.
The new policy is characteristic of several broader Trump administration patterns. First, it is the latest in an obsessive series of reversing Democrat decisions – in this case, a 2009 policy instituted by then-Secretary of State Hillary Clinton. There is no security need or other justification for the reversal, merely the irrelevant call to bring granting of visas to international diplomats in line with domestic U.S. family law.
Second, the policy takes advantage of marriage-focused media coverage of LGBTQ equality in recent years, thus distracting from other important equality issues. This is in some ways a natural consequence of well-supported advocacy campaigns. These campaigns arose from grassroots efforts independent from large activist organizations. Once leaders turned their attention to marriage, coordinated strategies of litigation along with media awareness campaigns turned public opinion about same-sex relationships at a stunningly quick pace. But one consequence of the increased awareness about issues relating to marriage equality is that other issues of LGBTQ equality fell out of the public’s attention.
For example, many Americans are unaware that although a same-sex couple may now legally marry, there is no federal legislation that explicitly protects that same couple from employment discrimination. Nor is there much state legislation offering protections for LGBTQ. In the same way, the Trump administration may be assuming that the average American is not aware of the global climate around LGBTQ rights. Less than 30 countries around the globe have marriage equality. And even with marriage equality, it can still be dangerous for individuals who are open about their sexuality. Just as many Americans considered Obergefell v. Hodges a sign that the fight for LGBTQ equality had been won, many people may think the fight for marriage equality was won throughout the world rather than in a minority of nations.
Finally, the visa policy is in keeping with a disturbing trend by the Trump administration – affecting one individual’s decision to come to the United States by threatening his or her family. International diplomats stationed in the U.S. or with the United Nations who have same-sex partners now face a choice. They can either hide their same-sex relationship and live in a different country than their partner or potentially expose themselves and their partners to discrimination and violence.
The parallel is obvious to the family separation policy of this past summer. Breaking up families is used as a deterrent for families seeking to immigrate to the U.S. In both cases, the safety of a loved one is used as a bargaining chip. This is merely one more way the Trump administration demonstrates disapproval of non-Americans and international law.
Despite the repugnancy of the policy, it does not seem that the change will occasion much attention or legal challenge. The executive holds a significant amount of discretion in areas relating to immigration, so any legal challenge to the policy would face particularly difficult odds. Although the visa policy signals a clear disregard for the safety and equality of LGBTQ people, it affects a relatively small number of people. So, the widespread public reaction akin to that sparked by the family separation policy seems unlikely. If allowed to proceed, however, the policy is simply one more step away from the promise of equality that most Americans hold dear.
Professor Dara E. Purvis is a scholar of family law, contracts, feminist legal theory, and sexuality and the law. She is particularly interested in the intersection between gender stereotypes and the law. Her most recent work examines gendered impacts of the law and proposes neutralizing reforms, most recently in the context of how the law defines parenthood.
Suggested citation: Dara E. Purvis, Diplomat Visa Policy: A Distraction From Larger Equality Issues, JURIST – Academic Commentary, Oct. 24, 2018, http://jurist.org/commentary/2018/10/diplomat-visa-equality-issues.php
This article was prepared for publication by Jess Lasky, an Associate Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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