Donald Trump’s plan to bar Muslims from entering the United States has been criticized as unconstitutional and inhumane, but it’s not unprecedented, as gay and HIV-positive people once faced similar prohibitions.
The United States barred gay people from entering the country by statute until 1990 and HIV-positive people from entering until the HIV travel ban was finally lifted in 2010.
The ban on gay people first appeared under the Immigration Act of 1917, which was passed by Congress in an override vote of President Wilson’s veto at a height of xenophobic sentiment in the United States. The law prohibited of a slew of classes of individuals from entering the United States, including anarchists, polygamists and those above age 16 who were illiterate.
The law also barred “persons of constitutional psychopathic inferiority,” which almost 60 years before the American Psychological Association would declassify homosexuality as a mental illness was understood to mean gay people.
With the Immigration & Nationality Act of 1952, Congress sought to further clarify its intent by replacing the language with an exclusion on immigrants “with a psychopathic personality,” which were explicitly defined as “homosexuals or sex perverts.” But the bill signed into law by President Truman contained only the language “psychopathic personality.” A Senate Judiciary Report on the bill reveals that phrase was considered “sufficiently broad to provide for the exclusion of homosexuals and sex perverts.”
Gay former Rep. Barney Frank, who led efforts to change the law in 1990 during his tenure in Congress, told the Washington Blade in a brief interview Thursday the gay ban wasn’t fully enforced, but was “harassment and it was a sign of contempt.”
“I think the Muslim ban is worse in many ways in terms of its impact on the rest of the world,” Frank said. “Unfortunately, when America was banning gay people, it was more in synch with the rest of the world. The Muslim ban is outrageous in terms of human rights, but it’s even worse politically in terms of foreign policy.”
In the 1960s, Clive Michael Boutilier, a Canadian national living in New York, challenged the interpretation of language as a prohibition on gay people entering the United States. When he applied for U.S. citizenship in 1963, he was instead placed in deportation proceedings because he admitted he was arrested in 1959 on charges of sodomy. (The charge was later reduced to simple assault and subsequently dismissed.)
Boutilier didn’t deny he was gay. At the request of the government as part of his citizenship application, he summited an affidavit outlining his sexual behavior in great detail. He said he had his first homosexual experience at age 14 and was a passive participant in the encounter. In the period since he entered the United States in 1955, Boutilier said he had sex with a man on average three or four times a year. Since 1959, Boutilier said he shared an apartment with a man with whom he was having sex.
Boutilier took issue with the language of the ban. Even though he was gay, he said that didn’t mean he had a “psychopathic personality.” But his appeal of the special inquiry officer’s finding was rejected by the Board of Immigration Appeals and the U.S. Second Circuit Court of Appeals.
When his petition was accepted by the U.S. Supreme Court, Congress and the progressive Kennedy and Johnson administrations were so concerned Boutilier would prevail they yet again changed the statutory language. One year after passing the Civil Rights Act of 1964, Congress changed immigration law in 1965 in a way that banned people from entering the United States who engaged in “sexual deviation.”
As it turned out, the concerns of Congress were unfounded. The famously progressive Warren Court, which ended school segregation and overturned bans on interracial marriage, determined in 1967 the “psychopathic personality” language was intended for gay people based on legislative history.
In a 6-3 decision, former U.S. Associate Justice Tom Clark determined the language was a “term of art intended to exclude homosexuals” and therefore not void under the Fifth Amendment because of vagueness.
“The Government clearly established that petitioner was a homosexual at entry,” Clark wrote. “Having substantial support in the record, we do not now disturb that finding, especially since petitioner admitted being a homosexual at the time of his entry. The existence of this condition over a continuous and uninterrupted period prior to and at the time of petitioner’s entry clearly supports the ultimate finding upon which the order of deportation was based.”
In his dissent, former U.S. Associate Justice William Douglas said the term “psychopathic personality” is “much too vague by constitutional standards for the imposition of penalties or punishment” and invoked the research of contemporaneous sexologist Alfred Kinsey in defense of gay people.
“It is common knowledge that in this century homosexuals have risen high in our own public service—both in Congress and in the Executive Branch—and have served with distinction,” Douglas writes. “It is therefore not credible that Congress wanted to deport everyone and anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society.”
Frank told the Blade when he was first seated in Congress in 1981, he was “determined to get rid of” the gay travel ban. Although he said the language at that time didn’t have many defenders, he had to resort to a tactic other than outright repeal to make the change.
“My problem was people didn’t want to vote explicitly to repeal it,” Frank said. “So the strategy was to take the whole section which embodied it, and rewrite the section to leave it out so nobody actually had to vote to repeal it.”
In 1990, Congress passed and President George H.W. Bush signed into law the Immigration Act of 1990, which reversed the gay ban in addition to making other changes to immigration law.
“I am also pleased to note that this Act facilitates immigration not just in numerical terms, but also in terms of basic entry rights of those beyond our borders,” Bush said in a signing statement at the time. “S. 358 revises the politically related ‘exclusion grounds’ for the first time since their enactment in 1952.”
Boutilier is considered an unsung hero of the gay rights movement, although Marc Robert Stein, an associate professor of history at York University in Toronto, Ontario, made public details about Boutilier’s life in a 2005 article, “Forgetting and Remembering a Deported Alien.”
Presumably distraught over the Supreme Court’s decision, Boutilier attempted suicide before leaving New York. After surviving a month-long coma that left him brain-damaged with permanent disabilities, he moved to southern Ontario, where his parents cared for him for 20 years. According to one of his relatives, he died of complications from heart disease in April 2003, weeks before Canada legalized same-sex marriage and months before the U.S. Supreme Court struck down state bans on sodomy in Lawrence v. Texas.
The HIV travel ban has a similar story. It was instituted in 1987 at the height of the AIDS crisis by the Reagan administration, which added HIV to the list of “dangerous and contagious diseases” that excluded people from entering the country. That same year, Congress reinforced the policy by passing an amendment from the late Sen. Jesse Helms adding HIV infection to the exclusion list.
Although the Immigration Act of 1990 allowed the Department of Health & Human Services to lift the HIV travel ban, that attempt was thwarted after an outcry from social conservatives. The ban was strengthened in 1993 under reauthorization of the National Institutes of Health, which included language specifying “infection with the etiological agent for acquired immune deficiency syndrome” was reason to bar someone from the United States.
Carl Schmid, deputy executive director of the AIDS institute and champion of lifting the HIV travel ban, said the policy presented complications on determining who was HIV positive — something he says he thinks would be duplicated if Trump’s Muslim ban went into effect.
“It’s really difficult to know who’s HIV positive and who’s not,” Schmid said. “So you connect that to Muslims as well. Who is to know just by looking at someone? I don’t think on your passport it has what religion you are.”
Schmid said the only way customs officers know if a traveller had HIV was if that person was carrying related medications.
In 1989, Dutch educator Hans Paul Verhoef was detained for five days in Minneapolis by immigration officials when they found azidothymidine with him en route to San Francisco for an AIDS conference. A waiver was obtained, but not until the conference ended.
The ban also kept the United States from hosting the high-profile annual international AIDS conference. When the conference was held in San Francisco in 1990, more than 70 organizations, including the International Red Cross, boycotted the event because of the HIV travel ban.
Congress would statutorily lift the ban under the administration of President George W. Bush when it renewed his President’s Emergency Plan for AIDS Relief in 2008. But the process wasn’t finished; President Obama had to administratively change federal rules, which finally resulted in the lifting of the ban in 2010.
“We lead the world when it comes to helping stem the AIDS pandemic — yet we are one of only a dozen countries that still bar people with HIV from entering our own country,” Obama said in 2009 upon announcing plans to lift the ban. “If we want to be the global leader in combating HIV/AIDS, we need to act like it. And that’s why, on Monday my administration will publish a final rule that eliminates the travel ban effective just after the New Year.”
Consequently, the nation hosted in 2012 the international AIDS conference in D.C. for the first time since the boycott of the U.S.-held conference in 1990.
Although Trump is considered the front-runner for the GOP nomination, the passage of a Muslim travel ban similar to the bans on gay and HIV-positive people the nation has had in the past seems unlikely.
Frank said he doesn’t think Congress would enact the restriction because “the majority of members know how stupid it is.”
“I don’t think there’s a remote chance of Donald Trump becoming president, but secondly, we’ve already seen it has virtually no support among Republican members of Congress with a Republican majority,” Frank said.
Joe Solmonese, former president of the Human Rights Campaign at the time the HIV travel ban was lifted, said the past treatment of gay people in this country, including travel prohibitions, makes it imperative for the LGBT community to speak out when other minority communities are demonized.
“That’s what’s really important for people to remember,” Solmonese said. “As we continue to be more and more powerful, and less and less the victim of this sort of rhetoric, I think we’ve got a moral obligation to pay attention to — and to speak up and have something to say — about other groups of people who become the victims of this kind of rhetoric.”