Category Archives: LGBTQ

India’s Supreme Court Re-Criminalizes Gay Sex

Pyaar Kiya Koi Chori Nahi

Photo credit: CNN-IBN India

In a shockingly poor decision, the Indian Supreme Court has reversed the July 2009 ruling of the Delhi High Court decriminalising gay sex between consenting adults. In doing so, India’s Supreme Court has recriminalized gay sex in India, rendering almost 20 percent of the global LGBT population illegal.

Overturning a High Court decision, the Indian Supreme Court upheld Indian Penal Code 377, an archaic and barbaric law that criminalizes “homosexual” acts:

377. Unnatural offenses — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Western media and LGBT organizations are already demonizing India as “backward” after this ruling, which does not make life easier for Indians who are gay and lesbian abroad, and conveniently casts the West as an arbiter of freedom. In fact, the New York Times took a potshot at Asian countries as a whole in reporting about India’s tragic decision, perhaps forgetting that gay sex was illegal in parts of the United States only ten years ago. Because LGBT people have been marginalized and mistreated for so long, many people in the West mistakenly see some forms of “gay rights” as a marker for progress or modernity. Anthropologist Akshaye Khanna articulates this quite well:

We are seeing, in several parts of the world, a cynical appropriation of the discourse of sexual rights and sexuality by right wing and reactionary agendas. In Western Europe, North America and Israel, we see the phenomenon of ‘homonationalism’, where LGBT discourse is being used in deeply racist—usually Islamophobic—groups. In East Africa, the question of sexuality has come to be the central question in discourse about the nation – where notions of ‘Africanness’ have come to be tied to the position on homosexuality. This centering of the question of sexuality is always a way of diverting attention from political and economic questions relating to the control over natural resources, or instances of corruption.

While people in India and across the world are mourning and expressing outrage at the ruling, and shaming the entire country, it is important to note that Indian Penal Code 377 is a relic of British rule and colonialism. Contrary to the sexual puritanism and homophobia that the British wrote into the law while colonizing India, Indian and Hindu culture is enriched with queer sensibility. It is rather ironic that the British are finally getting ready to start allowing same-sex marriages next year, while their retrograde policies in former colonies continue to harm and hamper peoples lives. The Indian Supreme Court ruling is a reminder that the Indian people cannot rely on courts to strike down an injustice rooted in colonial oppression, and that colonial ideas remain ingrained in a so-called post-colonial country.

However, colonial-era law or not, many Indians are rightly outraged by this decision from the Indian Supreme Court, which should have outlawed colonial-era discrimination, instead of punting the question of sodomy to the Indian parliament. Thus far, the Indian parliament has remained non-commital on the issue, sparking more outrage on social media and across the country. In a display of vibrant democracy, Indians are taking to the streets both in India and abroad in protest of the ruling. That hardly seems backward and regressive to me.

Funnily, while LGBT organizations in the U.S. expressed disappointement at the decision, they have rarely ever expressed the same sort of outrage about queer immigrants who are criminalized and locked up in detention at home. Claudette Hubbard, a long-time lawful permanent resident of the U.S. who escaped Jamaica after facing persecution for being gay, has been locked in an ICE detention facility for two years now. Viesca, a transgender detainee at El Paso, Texas who won her credible fear interview, reported constant degradation and harassment from guards, and finally agreed to her own deportation yesterday. Kumar Jagdish, a gay asylum seeker from India, has been detained at El Paso, Texas since June, 2013. You won’t hear these stories in the mainstream media, because they do not show a flattering image of the United States as a beacon of hope or democracy. After all, detaining and deporting thousands of immigrants daily is not a marker of modernity any more than criminalizing homosexuality. Frankly, I am disappointed in all of us.

As for Section 377, the law is clearly an abomination. While Section 377 has rarely been used to criminalize gay persons in India, Indian queer liberation activist Kaveri Indira reports that there are many enforced laws on the books that cause less nationl and international outrage, such as Karnataka Police Acts, which criminalizes hijras, gender transgressives and transgender persons. Perhaps it is time to take the outrage, and pour it into the threats and daily assaults against queer and transgender persons of color that are far more real and tangible in both the U.S. and India, than this poor Supreme Court decision.

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Married

Yesterday, we had a paparazzi wedding ceremony at the Lutheran Church of Reformation in Washington D.C.

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It was nonetheless, lovely to share our love with so many people, including all our badass friends from the National Immigrant Youth Alliance, and the same-sex binational couples from Immigration Equality who have so long been denied due process and equal protection under the law.

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Special thanks go to Emiliano Rojas, son of Claudio Rojas, who is the Cake Boss of the movement and stayed up all night making us a beautiful wedding cake with the help of Cristobal Lagunas-Alvarez, from DreamActivist Massachusetts. We are still eating through it, but you can have a photo.

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We’ll be getting legally married in a private ceremony in August.

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Thank you so much for making this day so wonderful and special.

Now Lindsay can work towards getting her Fijian citizenship.

Some media articles about the wedding are here:

P.S. Please email Lindsay Schubiner, lschubiner@gmail.com, for media quotes and comments as I’m busy studying for the bar exam.

P.P.S. Please send us all photos of the wedding ceremony!

Photo Credit: William Anderson, Benito Miller and Immigration Equality

 

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Post-DOMA – How Can LGBT Persons Benefit Under Current Immigration Laws?

With the Defense of Marriage Act dead, marriage equality provides more than 1,100 federal benefits previously unavailable to same-sex spouses.

I’m pretty sure that is an undercount given I can think of a hundred different immigration benefits alone. There are more than 24,000 American same-sex binational couples, but the immigration consequences of the Supreme Court’s decision to strike down DOMA goes beyond simply conferring green-cards to bi-national couples, and even affects step-children, adoption issues, derivative citizenship, and so on.

Some of the benefits that USCIS can promulgate immediately, without the need for new regulations or rule making, include:

  • Plain old adjustment of status to green card holder or consular processing and entering as lawful permanent resident;
  • Eligibility for provisional waivers for persons who entered without inspection;
  • Eligibility for I-601 hardship waivers for persons who were deported or left the country and triggered a 3/10 year bar;
  • In the special case of DACA beneficiaries who are queer, if they can obtain advance parole to travel under DACA, in theory, when they re-enter the U.S., they should be able to adjust their status through marriage to a U.S. citizen spouse (assuming no prior deportation);
  • Immigration benefits for step-children from a same-sex marriage;
  • Availability of waivers based on relationship to U.S. citizen spouse during removal defense including cancellation of removal, 212(h), and so on;
  • Relief under the Violence Against Women Act for battered spouses of U.S. citizens;
  • Derivative immigrant and non-immigrant visas, for legally-wed spouses including L-2; H-4, most E and EB categories and so on so that foreign-born and/or binational same-sex couples can actually live together in the U.S.;
  • Green card for persons who receiving withholding of removal, who now have U.S. citizen spouses.

That’s just a few examples. However, not everything is fine and dandy in the world, with DOMA gone.

Problems that remain

  • Enforcement – USCIS has not yet started issuing green cards for same-sex binational couples, or recognizing them as eligible for other benefits and waivers, but this is just a matter of time;
  • As immigration law recognizes a bona-fide marriage based on “place of marriage,” people who are too sick or poor to travel to one of the few states that provide for same-sex marriage lose out. A creative solution would perhaps be to figure out how video-conferencing technology can enable marriage of a couple stuck in an anti-marriage state or country;
  • Asylum seekers cannot get follow-to-join benefits for their partners left behind in countries with despicable LGBT human rights records. A creative solution for this may be enabling asylum seekers to gain humanitarian parole for a partner;
  • People detained in anti-marriage-equality states would also be left to fend for themselves. While this is true for even straight people, LGBT persons are more vulnerable in detention;
  • Bigoted consular processing officials who reveal the sexual orientation of an applicant to their relatives, putting their lives at jeopardy in their home countries;
  • Bigoted case officers in the U.S. – Now LGB couples can enjoy the misery that straight couples go through at marriage-based interviews;
  • Persons who have remained closeted, who come out and claim marriage benefits such as health insurance, may be subject to employment sanctions and workplace discrimination, which remains entirely legal;
  • For decades, LGBT persons have been evading border controls in creative ways. Those ways may come back to bite in some instances, especially where gay persons have committed marriage fraud by marrying straight persons for papers. There are, of course, several defenses, and one should seriously consider exploring all their options with an immigration lawyer experienced in litigation and removal defense. It is critical to note here that simply marrying to get papers is not fraud — fraud is triggered when papers are filed to get a particular immigration benefit.

I’m sure people have many questions and are seeking more practical knowledge for their individual cases. As such, I’d implore people to join Immigration Equality’s Legal Director Victoria Neilson, and Binational Couples Attorney, Tom Plummer, for a special, 90-minute conference call today at Noon ET. 

To join the call, dial
(800) 868-1837
(404) 920-6440 if you are outside the United States
and use access code 397548#

The IE legal team has posted answers to preliminary questions on their website. You can read those online here.

Please note: Nothing in this post denotes legal advice or is offered in substitution of advice from a lawyer. Success is not guaranteed and different people have different results. 

 

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Now Stealing American Spouses Too

429591_10150527346075095_625120094_9228496_1038846695_n-1As if stealing American jobs was not enough, illegal me was offered a full-time unpaid offer to marry my wonderful, beautiful, sweet U.S. citizen partner today.

This was inspired, in part, by the decision of the Supreme Court to extend my agony by granting certioari in the government’s almost-frivolous appeal in Mayorkas v. de Osorio but also the decision to strike down DOMA as unconstitutional. One way or another, the SCOTUS had to decide whether I get my green card through my mother or my spouse.

It was written. Since I am in California and she is in Washington D.C. right now, it came out of left field on Google Hangout. Then a missed call. I asked on Facebook whether someone would marry an undocuqueer, and she said “ME!” Several times, might I add.

Well, the status message doesn’t count as a offer, but an invitation to make offers. Excuse Contracts bar exam prep swimming in my head. I took a break from furious tweeting and saw her proposal on my iPad, via Talktone app! And I finally replied via GChat “Yes.” But wait, then she recanted. “Real proposals should be in person.” Too late, “I love you, and I already accepted.”

And then since it was on Facebook and Twitter, it must be true! Thanks, social media.

We told our parents. Our friends and family members are happier than us.

Now the trolls can say “they come here to steal our jobs and our wives….”

In all seriousness, marriage equality is the floor. I would ideally want to see the day that assimilating to the white, heterosexual paradigm is not the arbiter for rights and freedoms. I am very deeply, personally, anti-marriage as a way of granting people civil rights. We both are, which is why all of this is weird, and new territory. Ideally, we wouldn’t need to be married in order to live together and in order for me to adjust status to a green card holder.

Alas, we live in an imperfect world in imperfect times.

The Supreme Court decision to strike down Section 3 of DOMA as unconstitutional comes as a boon for so many same-sex bi-national couples similarly situated, who have been separated and borne the brunt of discriminatory immigration laws for far too long. Now, as soon as USCIS gives word and without needing any sort of regulations, any bona-fide marriage performed in a place that recognizes same-sex marriage should qualify a foreign-born spouse of a U.S. citizen for a green card. Undocumented persons who entered and stayed in the U.S. without inspection would still need hardship waivers to get a green card through marriage to a U.S. citizen. And tomorrow at the AILA Conference, I will corner USCIS Director, Alejandro Mayorkas, and extract a promise that he start stamping green cards for same-sex bi-national couples starting yesterday.

I love you Lindsay Schubiner. Of course, I’ll marry you whenever, wherever and however you want.

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Financial Assistance for Dreamers

Everyone is suddenly trying to help Dreamers, so here are some groups trying to provide Dreamers with financial assistance for their DACA applications:

If you need an attorney, DreamActivist has a list of vetted attorneys charging under $1000 here:
http://www.dreamactivist.org/attorneydaca/

Please use at your own risk and discretion.

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MetroWeekly Article – “How It Ends”

I had the honor of being interviewed for a great piece — “How It Ends” — by Chris Geidner in MetroWeekly exploring what “LGBT equality” means and why some of us would like to take the fight in a dramatically different direction from gay marriage.

I think civic equality and emancipation are two entirely different concepts. I yearn for emancipation much more than civic participation but I’m still trying to determine exactly what that means. The best example I can come up with concerns diversity. Real diversity in the workplace doesn’t stop at hiring people and women of color employees. Real diversity means affirming an employee when s/he walks into the office wearing a sari or salwaar kameez — traditional ethnic attire — or gets a queer haircut. In my head, that’s how it should end.

Please do read the piece and pass it along.

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A Queer Theory Approach to On Dharun Ravi, Tyler Clementi and “It Gets Better”

“So Clementi’s suicide quite predictably, occasioned a vicious Anti-Asian backlash that was replete with overdetermined notions of Asian homophobia and predictable calls to go back to your country. This is all the more ironic because they came from New Jersey.”

This is a fantastic lecture by queer theorist Jasbir Puar, where she connects the dots between the discourse of [white] gay teen suicides to problematic assumptions not only about race, class, and gender, but also bodily health, debility, and capacity,

“This is the kind of post-civil rights multicultural liberal inclusion where the sexual other is always understood is being white. And the racial other is always understood as straight.”

She also reiterates her critique of “It Gets Better” project in the Guardian as “a call to upward mobility that echoes the now discredited pull ‘yourself up by the bootstraps’ immigrant motto. Part of the outrage is rooted in the belief that things are supposed to be better, particularly for a class of white gay man […] this desire amounts to the reinstatement of white racial privilege that was lost with being gay. It gets better means you get more normal.”

The lecture is part of the series The Subtle Racializations of Sexuality: Queer Theory, the Aftermath of Colonial History, and the Late-Modern State organized by Antke Engel, Institute for Queer Theory, in cooperation with the ICI Berlin.

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