"Who Is a Homosexual?": The Consolidation of Sexual Identities in Mid-Twentieth-Century American Immigration Law

Abstract

This essay uses court records to trace the federal government's attempts to regulate homosexuality among immigrants in the mid‐twentieth century, asserting that such attempts illustrate the state's struggle to make homosexuality visible, to produce a homosexuality that could be both detected and managed. I focus on the process by which two competing paradigms for understanding homosexuality (status and conduct) were consolidated into a single model in which homosexual identity could be deduced from homosexual acts. Federal officials and the courts initially treated homosexuality as a form of conduct, most commonly deporting homosexual aliens for having committed crimes of moral turpitude. Later, these same government entities relied on status provisions, deporting immigrants charged with homosexuality as aliens “afflicted with psychopathic personality.” While the “psychopathic personality” terminology supported the notion that the homosexual was a kind of person rather than a set of behaviors, it also depended upon psychiatrists to support the claim that homosexuals were by definition psychopathic. When many psychiatrists distanced themselves from that idea, the government refused psychiatric opinion that differentiated psychopaths from homosexuals by arguing that these terms connoted legal‐political rather than medicalized identity categories. While this conception arose out of a conservative impulse by immigration officials and the courts to fix homosexuality as identity so that it could be regulated (by bureaucrats rather than psychiatrists), I argue that the emphasis on legal‐political identity categories licensed a conception of the homosexual as a kind of citizen that had some emancipatory as well as repressive effects.

Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims

“…Recognition of queer sexual identities through asylum law increasingly blurs any (imagined) crisp dividing line between heterosexuals and homosexuals, as bisexuals and even those with imputed and ambiguous sexual identities are officially recognized by the state. Just as the state contributed to the consolidation of a modern gay identity through the legal regulation of sexuality and thus paved the way for gay rights claims that we see today (Canaday ), the law may now be contributing to the consolidation of other sexual identities and creating potential for greater activism around these queer subjectivities. Asylum thus throws into sharp relief the role that law plays in co‐constructing identities through a dialectical process.…”

“…For instance, the Immigration Act of 1891 brought immigration under federal control and defined exclusionary criteria, including provisions barring persons guilty of crimes of moral turpitude. Though “moral turpitude” was never fully defined, it was understood to encompass (and used to exclude) sexual deviants (Canaday ). Canaday () further suggests that U.S. citizenship and sexual identity have been intertwined in military, welfare, and immigration policy since at least the end of the nineteenth century and that the homo/hetero binary structured citizenship in many ways, including defining the proper citizen as heterosexual.…”

The relationality of law and culture: Dominant approaches and new directions for cultural sociologists

“…Laws determine both the position of boundaries between groups and the extent to which boundaries between groups are porous. For example, law produces the boundaries of racial groups (Crenshaw, ; Golub, ; Gualtieri, ; Lopez, ; Sohoni, ), families (Rose, ; Witt, ), economic classes (Iceland, ), gender groups (Epstein, ; Korteweg, ), sexualities (Canaday, ; Rollins, ), and citizens and non‐citizens (Favell, ; Joppke, ; Schmidtke & Ozcurumez, ; Soysal, ). Law also determines the extent to which these boundaries can be crossed, for example through intermarriage, wage equality, or access to national group membership.…”

On the Importance of Naming: Gender, Race, and the Writing of Policy History

“…This focus on conduct "destabiliz[ed] homosexuality as identity by asserting either that homosexual conduct did not make one homosexual or that homosexuals were not psychopathic, and thus not covered by the law." 84 Race, however, mattered; the two cases where work history and family ties led courts to determine individuals were not homosexuals involved Northern European men. But in 1967, the Supreme Court labeled the homosexual an identity stemming from behavior, which immigration reform in 1965 specifically included under "psychopathic" exclusions.…”