Transgender legal protections have long been contentious issues, with courts often pathologizing or refusing recognition of transgender identities. Recently, however, courts adjudicating asylum claims have recognized “transgender” as a legitimate category of protection. I take this legal development as an opportunity to ask how courts determine if individuals are transgender. While previous work has shown how courts maintain the gender binary, asylum law offers the first chance to analyze how recognizing a distinct transgender category affects the legal gender order and the classification of trans claimants. Drawing on court decisions, ethnographic observations, and interviews, I argue that the recognition of transgender as a category implicitly acknowledges the malleability of gender. Yet, the adjudication of transgender asylum cases continues to uphold a fixed and binary conception of gender by assuming a “born into the wrong body” narrative and that claimants should always already know their gender identities. Courts thus enforce a cis–trans binary wherein only certain claimants are found “trans enough.”

Using court decisions, interviews with legal actors, and ethnographic observations, 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. Asylum 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 interpreted, particularly in approximately the past decade, offers possibilities for making unique identity claims that are not recognized in existing scholarship.

Considerable socio-legal scholarship demonstrates law’s constitutive power, and much criminological research has considered the effects of actuarial risk assessment. However, these strands have rarely been brought together to consider how legal risk assessment practices constitute sexual subjects. This article argues that law and forensic psychology co-constitute the category of the ‘sexually violent predator’ (SVP) as a distinct type of person through the use of psychiatric diagnosis and actuarial risk assessment. Contrary to dominant views of actuarialism as de-individualizing, this article asserts that SVP proceedings are centrally concerned with individualized intervention, yet such proceedings continue to produce static risk subjects rather than the dynamic subjects identified in recent research on actuarial practices. It is argued that this stems from entrenched cultural views of sexuality as a fixed essence inherent in individuals. The risk assemblage in SVP proceedings therefore presents a unique theoretical case that does not clearly fit prevailing accounts of actuarialism.

Advocates have long observed that sexual minority women are treated less favorably than sexual minority men under US asylum law. However, there has been little empirical examination of these claims in a US context. We offer the first systematic comparative empirical analysis of 199 asylum decisions for cisgender sexual minorities. Using quantitative metrics to contextualize in-depth qualitative analysis, we show that even when cisgender sexual minority men and women face very similar types of violence, women’s claims are adjudicated differently. This is particularly stark in courts’ treatment of sexual violence but is also evident in determinations of generalized persecution and individuals’ sexualities. When women attempt to use laws that are structured around straight, white, Western male perspectives and experiences, their pathways are limited and sometimes nonexistent. Although the flexibility in this area of asylum law has allowed many types of new claims, these changes have mostly benefited those assigned male at birth, and this surface malleability has ultimately worked to maintain law as a regulatory structure. Even with seemingly progressive changes in asylum law, the law itself continues to uphold race, gender, and sexuality as durable social structures and does little to ameliorate inequalities along these axes of social difference.

In the United States, people perceive men’s masculinity to be more precarious, or easier to lose, than women’s femininity. In the present manuscript, we investigated (1) whether men’s heterosexuality is likewise perceived to be more precarious than women’s, and if so, (2) whether this effect is exaggerated when the targets in question are Black rather than White. To investigate these questions, we conducted a large-scale (N = 3,010), nationally representative experiment in which participants read about a target person who either did or did not engage in a single same-sex sexual behavior. Results revealed that participants questioned the heterosexuality of men more than the heterosexuality of women when they engaged (vs. did not engage) in a same-sex sexual behavior. Surprisingly, these effects were not moderated by whether targets were Black vs. White. In other words, men’s heterosexuality was indeed perceived to be more precarious than women’s, irrespective of targets’ race.