Out of Bounds: Gender Outlaws, Immigration, & The Limits of Assimilation
Queer and transgender Americans have secured substantial federal protections in the past decade, from United States v. Windsor’s takedown of the Defense of Marriage Act to Obergefell v. Hodges’s guarantee of marriage equality to Bostock v. Clayton’s affirmation of the inclusion of queer and transgender identity in Title VII protections. Other recent developments, including new state-level laws protecting the rights of trans/nonbinary individuals, as well as a federal embrace of third-gender markers on United States passports, have expanded foundational protections. Although mainstream acceptance of queer and trans identities has grown substantially in the past several decades, the Supreme Court’s 2022 Dobbs v. Jackson Women’s Health decision highlights the precarity of these protections. Yet queer and trans people continue to confront regressive homophobic and transphobic laws and policies as well as an epidemic of private and public violence and discrimination throughout the United States. Despite these protections, queer and trans noncitizens confront a very different regime than the one their United States citizen counterparts face. Recent developments have opened doors to queer and transgender noncitizens, such as access to marriage-based immigration; yet these avenues primarily beneft gay cisgender individuals, who can align with the mandates of a cishe terosexist immigration regime, while continuing to exclude those who are less able—or less willing—to assimilate into the cisheteronormative American ideal. This Article examines how the expansion of cisheteronormatively anchored rights leaves out queer and trans noncitizens along two axes: access to immigration benefits and access to identity. After reviewing these two axes along which queer and trans noncitizens experience disparate treatment, the Article concludes that assimilationist advocacy strategies for rights of queer and trans persons have led to disparities between queer and trans noncitizens and citizens. This Article further posits that reimagining systems to center the needs of queer and trans noncitizens reveals the liberatory possibilities of the abolition of state regulation of gender and sexuality, leading to a safer and more equitable landscape.