Sex and Immigration

Sex and immigration have long been intertwined, with sex (often in combination with race) being used as a criteria for denying immigration benefits. Indeed, the first federal law restricting immigration, the Page Law of 1875, barred women (mostly Chinese) suspected of entering the country for ‘‘lewd or immoral purposes.’’ Even when sex-based classifications were not explicit, ostensibly neutral categories often masked discrimination on the basis of sex. For example, beginning in the nineteenth century, immigration classifications barring individuals likely to become public charges were used to deter women from immigrating. More recently, women fleeing abuse across borders have struggled to gain recognition of domestic violence and female genital mutilation as grounds for political asylum. Although asylum laws use gender neutral language, these legal standards have long been construed without recognition of women’s particular experiences of abuse and persecution.

Sex-based classifications in immigration law have also extended to undermine aspects of women’s citizenship. For example, until married women were given some legal autonomy within marriage in the nineteenth and early twentieth centuries, immigration laws did not recognize them as individuals separate from their husbands, and they traveled under their husband’s passports. Likewise, until 1934, immigration law permitted transmission of citizenship to children through blood from U.S. citizen fathers but not mothers. And from 1907 to 1922, United States citizen women who married noncitizens lost their citizenship—a policy that was deemed necessary to prevent foreign influences from undermining American society.

Some of these sex-based immigration laws are still in force. Restrictions on immigration of prostitutes and low-income individuals, for example, while modified in the intervening generations, still persist and fall particularly hard on women immigrants. Among others, women who have been trafficked by third parties or otherwise forced into prostitution may have difficulty entering as immigrants under these rules. Similarly, immigrant women fleeing abuse who must turn to domestic violence shelters or other community assistance for support may run afoul of immigration laws barring entry of those liable to be a public charge. U.S. citizens are also still subject to sex-based laws; for example, paralleling domestic policies that give mothers greater responsibility than fathers for nonmarital children, immigration law permits citizen mothers to freely transmit their citizenship to their foreign-born out-of-wedlock children, while fathers seeking to transmit citizenship must meet a host of specific criteria before the child’s eighteenth birthday.

Nevertheless, women make up a significant percentage of new arrivals to the United States, including undocumented immigrants. In 2004, females accounted for 55 percent of new legal permanent residents and 54 percent of persons naturalizing. According to 2002 data, women constituted 41 percent of the adult undocumented population.

The predominance of women immigrants will continue to create pressure to enact laws addressing issues faced disproportionately by women, such as domestic violence. In addition, as the rights of homosexuals continue to expand internationally, U.S. immigration law will face a new set of challenges arising from changing norms of sex and sexuality. For example, although several nations and some states now recognize same-sex marriages or civil unions, United States immigration law continues to limit marriage-based immigration benefits to individuals in heterosexual relationships.

MARTHA F. DAVIS

References and Further Reading

  • Abrams, Kerry, Polygamy, Prostitution and the Federalization of Immigration Law, Columbia Law Review 105 (2005): 3: 641–716.
  • Annual Flow Report, Office of Immigration Statistics, Department of Homeland Security, June 2005.
  • Bredbenner, Candice Lewis. A Nationality of Her Own: Women, Marriage, and the Law of Citizenship. Berkeley and Los Angeles: University of California Press, 1998.
  • Gardner, Martha. The Qualities of a Citizen: Women, Immigration and Citizenship, 1890–1965. Princeton, NJ: Princeton University Press, 2005.
  • Peffer, George Anthony. If They Don’t Bring Their Women Here: Chinese Female Immigration before Exclusion. Urbana: University of Illinois Press, 1999.

Cases and Statutes Cited

  • Page Law of 1875, Act of March 3, 1875, ch. 141, 18 Stat. 477

See also Fiallo v. Bell, 430 U.S. 787 (1977); Illegitimacy and Immigration; Immigration and Marriage Fraud Amendments of 1986

Comments:

reload, if the code cannot be seen