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"Looking like a Lesbian": The Organization of Sexual Monitoring at the United States-Mexican Border Author(s): Eithne Luibheid Source: Journal of the History of Sexuality, Vol. 8, No. 3 (Jan., 1998), pp. 477-506 Published by: University of Texas Press Stable URL: http://www.jstor.org/stable/3704873 Accessed: 22/04/2009 17:17

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"Looking Like a Lesbian": The Organization of Sexual Monitoring at the

United States-Mexican Border

EITHNE LUIBHEID Doctoral candidate, Ethnic Studies

University of California, Berkeley

I

WHILE RETURNING by taxicab from Juarez, Mexico, to El Paso, Texas, on January 6, 1960, Sara Harb Quiroz was stopped for ques- tioning by an immigration service agent. Quiroz was not a newcomer to the United States. She had acquired permanent U.S. residency in July 1954, at the age of twenty, and lived in El Paso where she worked as a domestic. We do not know why she traveled to Juarez on that par- ticular occasion, but her parents and her nine-year-old daughter lived there. Other familial, economic, and social ties also drew the residents of El Paso to Juarez. Documentation that explains why Quiroz was

stopped no longer exists. But Albert Armendariz, the attorney who handled her case, believes she was stopped because of her appearance. "Based on looks. Based on the way she dressed. The way she acted. The way she talked."' In the eyes of the immigration inspector who

This article is dedicated to Hiroko Taira. I also gratefully acknowledge the many forms of support that made this article possible. Support included funding from the Vice Chan- cellor for Research at the University of California, Berkeley; generous assistance from Al- bert Armendariz, Sr., Esq., and his staff; Shannon Minter's suggestion that I locate and interview Mr. Armendariz; legal information from Professor Carolyn (Patty) Blum and Su- san Lee; theoretical assistance from David Lloyd; helpful suggestions from Jill Esbenshade, JeeYeun Lee, Jose Palafox at the National Network for Immigrant and Refugee Rights, Jasbir K. Puar, Carla Trujillo, and audience members at the American Studies Association Conference in 1996; encouragement from Jean Molesky Poz; interviews with four anony- mous lesbian immigrants; critical feedback from Arlene Keizer and Alberto Perez; and the continued support of my dissertation committee. The mistakes are mine.

'Albert Armendariz, Sr., interview by author, El Paso, Texas, March 18, 1996.

[Journal of the History of Sexuality 1998, vol. 8, no. 3] ? 1998 by The University of Chicago. All rights reserved. 1043-4070/98/0803-0004$02.00

477

478 EITHNE LUIBHEID

stopped her, Quiroz seemed like a lesbian. Until as recently as 1990, lesbian immigrants were excludable and deportable from the United States.

II

The case of Quiroz provides us with a window into immigration service efforts to identify and exclude foreign-born women who were believed to be lesbians. Some scholars date lesbian and gay exclusion from 1917, when "constitutional psychopathic inferiors," including those with "ab- normal sexual instincts," became excludable.2 However, the most exten- sive records about immigration service efforts to police the border

against lesbians and gay men date from after the passage of the 1952 McCarren-Walter Act. In anticipation of the act, the Senate Committee of the Judiciary recommended in 1950 that "classes of mental defectives [who are excludable] should be enlarged to include homosexuals and other sex perverts."3 However, the final wording of the McCarren-Walter Act did not explicitly mention homosexuals. Instead, homosexual exclu- sion became rolled into the provision that barred entry by psychopathic personalities. A Senate report explained, "The Public Health Service has advised that the provision for the exclusion of aliens afflicted with psy- chopathic personality or a mental defect... is sufficiently broad to pro- vide for the exclusion of homosexuals and sex perverts. This change in nomenclature is not to be constructed in any way as modifying the intent to exclude all aliens who are sexual deviants."4 In 1965, lesbian and gay exclusion was recodified, this time under a provision barring entry by "sexual deviates."

To date, only cases involving men who were alleged by the Immigra- tion and Naturalization Service (INS) to be gay have received substantive scholarly analysis. Little is known about the experiences of women.5 By providing information about Quiroz's case, which is the only docu- mented case involving a woman that has been uncovered to date, I renar- rate the history of lesbian and gay immigration exclusion in a way that

2Cited in Matter of LaRochelle, 11 I&N December 436 (Board of Immigration Ap- peals, 1965).

3 Senate Committee of the Judiciary, The Immigration & Naturalization Systems of the United States, 81st Cong., 2d Sess., 1950, S. Rep. 1515.

4"Revision of Immigration & Nationality Laws," Senate, 82d Cong., 2d sess., 1952, Rep. 1137, 9.

5A significant amount of information about the history of gay and lesbian exclusion has been reconstructed from the records of court cases. To date, Quiroz v. Neelly, 291 F 2d 906 (1961), is the only female court case that has been identified.

"Looking Like a Lesbian" 479

centers, rather than subsumes, specifically female experiences.6 In addi- tion, Quiroz's case raises questions about the complexities of mapping histories of immigrant, refugee, and transnational women while using sexual categories that substantially derive their meanings from metro-

politan centers.7 This article's methodological and theoretical frameworks are drawn

from Michel Foucault's The History of Sexuality (vol. 1). Though Fou- cault never explicitly addressed immigration, his work usefully points out that sex became something for the state to administer and manage. The

nineteenth-century multiplication of discourses about sex unquestion- ably affected the U.S. immigration system, which took up these dis- courses and developed procedures for administering sex in relation to multiform objectives (that concerned not only sex but also gender, race, class, and constructions of nation). Foucault's discussion of how homo- sexual acts became reconstructed, as evidence of the existence of homo- sexual types, illustrates the general process whereby the administration of sex enabled relations of power to become organized and extended.8 The example also draws attention to the specific ways that sexual catego- rizations became "freight[ed] . . with epistemological and power rela- tions," through which immigration monitoring became organized.9 The

incorporation of sexual categorizations into exclusion laws, as well as the

development of procedures to detect and deter entry by those who fit

6This article focuses on the exclusion of lesbians and gay men, specifically, in U.S. immi-

gration. Though the contemporary notion of "queer" also includes people who are bisex- ual and transgendered, as well as various heterosexualities, these were not identities around which the policing of immigration was organized. Rather, the historical record suggests that Congress and the immigration service were specifically concerned with a homosexual threat. Court cases indicate that individuals who were sexually involved with both men and women were considered homosexual, rather than bi- or heterosexual. Indeed, they were considered to be particularly pernicious homosexuals, who deceitfully tried to hide their "condition" by becoming involved with people of the opposite sex.

7Kieran Rose, "The Tenderness of the Peoples," in Lesbian and Gay Visions of Ireland: Towards the Twenty-First Century, ed. ide O'Carroll and Eoin Collins (London, 1995), p. 74.

8 Foucault argues that, though particular sexual acts had a long history of being forbid- den and subject to punishment, it was only in the nineteenth century that these acts became reconstructed as the signs of distinct types of personages, each endowed with a discrete sexual identity that the state needed to monitor and manage. For example, homosexual acts became reconstructed as the sign of a homosexual type. As a result, "the homosexual be- came a personage, a past, a case history, and a childhood, in addition to being a type of

life, a life form, and a morphology, with an indiscreet anatomy and a possibly mysterious physiology ... the homosexual was now a species." See Michel Foucault, The History of Sexuality: An Introduction, vol. 1 of The History of Sexuality, trans. Robert Hurley (New York, 1990), p. 43.

9Eve Kosofsky Sedgwick, Epistemology of the Closet (Berkeley, 1990), p. 9.

480 EITHNE LUIBHEID

the categorizations, is a key piece of how the immigration system came to exclude individuals on the basis of sexuality.10

That Quiroz encountered difficulties when entering at El Paso, be- cause an agent suspected that she was a lesbian, clearly demonstrates that

sexuality functioned as a "dense transfer point for relations of power" at the border." But in analyzing her case, I resist making efforts to deter- mine whether she was a lesbian, since such efforts participate in power relations that recirculate and naturalize dominant cultural notions of sexual "types." 2 Instead, my approach to Quiroz's case focuses on prob- lematizing how mainstream institutions, including the INS, remain in- vested in constructing fixed boundaries around what homosexuality is. Such boundary marking involves operations by which mainstream insti- tutions empower and legitimize themselves while producing diverse mi- noritized populations.

III

INS monitoring techniques contributed to the construction of the very sexualities against which they guarded the nation.13 This fact becomes

L?The immigration service also excluded those who had committed sexual acts that were forbidden by immigration law, whether or not the person fit within a sexual identity cate-

gory. As Janet Halley usefully reminds us, sexual types and sexual acts "are not mutually exclusive descriptors" (p. 184), but rather, they interrelate in the production of categories of people who are marked out for exclusion. See Janet Halley, "The Status/Conduct Dis- tinction in the 1993 Revisions to Military Anti-Gay Policy: A Legal Archaeology," in GLQ 3 (1996): 179-251.

"Foucault, The History of Sexuality, 1:103. For Quiroz, the density of the relations of

power also have to do with the fact that she was a Mexican woman, and as such, was con- nected to a larger history of strict immigration monitoring directed at people of Mexican

origin attempting to enter the United States. See Leo Chavez, Shadowed Lives: Undocu- mented Immigrants in American Society (Fort Worth, TX, 1992); Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS (New York, 1992); Roger Rouse, "Making Sense of Settlement: Class Transformation, Cultural Struggle, and Transnational- ism among Mexican Migrants in the United States," in Towards a Transnational Perspective on Migration, ed. Nina Glick Schiller, Linda Basch, and Cristina Blanc-Szanton, Annals of the New York Academy of Sciences no. 645 (New York, 1992); and other writings on Mexican migration.

12There is a double problem here. Efforts to determine whether Quiroz was a lesbian sustain sexual categorizations, even if the efforts are motivated by affirmation of resistant and minority sexual subjects. Furthermore, these sexual categorizations substantially derive their meanings from metropolitan centers, which are materially and ideologically impli- cated in the production of immigrant women as racial or ethnic minorities. Thus, uncritical application of the term "lesbian" to a woman such as Quiroz can easily erase her different historical formation and complex positionality, without revealing anything about her sexu- ality.

"3For a discussion of how the U.S. is constituted as heterosexual, see Lauren Berlant and Elizabeth Freeman, "Queer Nationality," in boundary 2 (1992): 149-80.

"Looking Like a Lesbian" 481

clear when we examine how immigrants came to be designated as ex- cludable on the basis of homosexuality. Since there is no easy way to differentiate lesbians and gay men from heterosexuals, what led certain

people to be singled out? On looking through case histories, it appears that immigrants came to INS attention as possible lesbians or gay men on the basis of checkpoints that were set up within the immigration pro- cess. These checkpoints served as particularly dense points where domi- nant institutions constructed (and individuals contested) the possible meanings of lesbian or gay identity, and of who should be included within these categories.

In thinking through the operation of these checkpoints, we must avoid two common and related mistakes. First, we should not imagine that coherent, predefined lesbian or gay identities always existed among immigrant applicants, and that the checkpoints simply captured these

preformed "queer" subjects. To frame the issue in this way is to miss the myriad ways that these checkpoints often regulated the terms by which formation of identity occurs.14

Second, and conversely, we have to conceptualize lesbian and gay identities as being never reducible to these checkpoints. Though the checkpoints were dense power points in the dominant culture's produc- tion and policing of homosexuality, not all (potential) lesbian/gay sub- jects were equally affected. This is because lesbian and gay identities are also inflected by race, class, gender, cultural, and religious features that defy the possibility that there can be any uniform queer identity; equally, the checkpoints themselves reflected some degree of bias, such that they captured males more than females, and Latin Americans and Europeans more than Asians. Consequently, in looking at who was liable to become ensnared by these checkpoints, we should never imagine that this was the totality of the kinds of lesbian, gay, or "queer" identities that were passing into the United States.'5

One of the richest sources of information about these immigration

14 Thanks to Judith Butler for this succinct formulation. Two examples may help to illus- trate how immigration checkpoints can regulate the terms by which identity is formed. I interviewed a woman who had had a sexual relationship with a woman in her country of

origin and thought nothing of it-until she was asked by a State Department official, while

applying to immigrate, if she was a homosexual. The fact of being asked, and the manner in which she was asked, made her rethink the significance of that sexual experience. A sec- ond, rather different, example concerns a woman who came to the United States, lived here for several years, and began to think of herself as a lesbian. But she knew that in order to adjust from immigrant to citizen status, she would one day be asked to account for her activities before immigration officials. Therefore, the woman did not feel free to join lesbian groups or activities until she held citizen status.

5The fact that certain forms of queer identities were unlikely to be captured by these checkpoints does not make the fact of policing any less salient for all queer people, however.

482 EITHNE LUIBHEID

checkpoints comes from court records. Perhaps not surprisingly, almost all of the court cases that have been reconstructed concern men. Very striking are the numbers of men who ended up being targeted by the INS because of criminal convictions related to sexual activity. Writing about German-born Horst Nemetz, who had no criminal record con- nected to his sexual activities with men, Shannon Minter describes the extent to which male-male sexual practices remain heavily criminalized:

His denial of public activity [for which he could have been con- victed] means that he never made love on a beach, in a car, in a

park, or in any of the other quasi-public places in which heterosex- ual couples occasionally engage in sexual relations. His denial of

"recruiting" means that he never sexually propositioned a man in a bar, at a party, on the street, or anywhere outside his home. His denial of ever being arrested or questioned by the police means either that he was fortunate, or that he avoided gay bars, gay bath-

houses, gay cruising areas in parks and bathrooms, and other places that gay men informally gather and socialize. It also means he never had the misfortune of expressing sexual interest to an under- cover police officer posing as a gay man.16

Court cases confirm that significant numbers of immigrant men came to INS attention on the basis of sexual criminalization.

But given that lesbian sexual activity is not usually as heavily policed, how can we map lesbians onto this history of immigration exclusion? Less policing does not mean that lesbian sexuality is more socially ac-

ceptable than gay male sexuality. However, disbelief that women can have sex without the presence of a male penis-and the ways that gender, in

conjunction with race and class, has differentially shaped the acquisition and formation of spaces where women could come together to have sex-means that lesbian sexuality has not been scrutinized and policed in the same ways as gay male sexuality. The result was that INS criminal record checks were more likely to affect men, rather than women, who

engaged in same-sex activities. Were lesbians therefore relatively unaf- fected by the historic practices of homosexual exclusion? That is one pos- sibility. A second possibility is that indicators other than criminal record checks were used to identify women who might be lesbians. Given the dearth of known lesbian exclusion cases, it is difficult to know what these

'6Shannon Minter, "Sodomy and Public Morality Offenses under U.S. Immigration Law: Penalizing Lesbian and Gay Identity," Cornell International Law Journal 26

(1993): 799.

"Looking Like a Lesbian" 483

indicators were.17 The Quiroz case provides one (possibly unrepresenta- tive) example.18

As mentioned earlier, the lawyer who handled Quiroz's case believes she was stopped because she looked, spoke, and acted "like a lesbian." Quiroz was also unlucky enough to encounter an immigration inspector who had undertaken a personal campaign to identify and expel women who he believed were sexual deviates: "There was this fellow who was at the International Bridge.... He had a thing for people, especially women ... who were lesbian, or in his mind were deviates, and met the requirements of the statute [for exclusion] .... They would go to Mex- ico on a visit, and on the way back he would send them to secondary [inspection] where he would determine they were ineligible to enter. This officer was very, very good at making people admit that they were sexual deviates." 19 The importance of appearance is confirmed by testi-

mony that was given to the INS by Quiroz's employer, to the effect that "the respondent usually wore trousers and a shirt when she came to work and that her hair was cut shorter than some women's."20

The use of visual appearance to monitor the border against possible entry by lesbians connects to a complex history. A 1952 Public Health Service (PHS) report to Congress mentioned visual appearance as one

possible index of homosexuality. "In some instances considerable diffi- culty may be encountered in substantiating a diagnosis of homosexuality or sexual perversion. In other instances, where the action or behavior of

7 But we should not treat this dearth of court cases as further evidence that lesbians were unaffected by immigration policing; instead, we need to remain attuned to the ways that women are historically excluded/unrepresented within official documents, but were

present historically and had an impact. See Yolanda Chavez Leyva, "Breaking the Silence:

Putting Latina Lesbian History at the Center," in The New Lesbian Studies: Toward the

Twenty-First Century, ed. Bonnie Zimmerman and Toni McNaron (New York, 1996), pp. 145-52.

'8Aside from Quiroz, the only other lesbian immigration case I have ever seen cited is In re Schmidt, 56 Misc. 2d 456, 459-60 NY Sup. Ct. (1961). This case is cited by Minter, who describes the issue as follows: "A New York court applied Judge Hand's standard to a lesbian seeking naturalization after living and working in the United States for fourteen

years. The woman testified to having had a series of relationships with women, both before her entry to the country and after. Citing a New Jersey court that found 'few behavioral deviations ... more offensive to American mores than ... homosexuality,' the New York court dismissed the woman's petition for citizenship despite the fact that her behavior was

private and violated no law." See Minter, p. 794. 19Armendariz interview (n. 1 above). Armendariz estimates that this officer was single-

handedly responsible for the exclusion or deportation of several hundred women for "sex- ual deviation."

20Decision of the Special Inquiry Officer, case A8 707 653, U.S. Department of Justice, Immigration and Naturalization Service, El Paso, TX, March 25, 1960, p. 3.

484 EITHNE LUIBHEID

the person is more obvious, as might be noted in the manner of dress (so called transvestism [sic] or fetishism) the condition may be more easily substantiated [emphasis added]."21 This passage suggests that monitor-

ing based on visual appearance operated around the notion of gender inversion-that is, homosexuals could be visually identified by the fact that gay men looked effeminate or lesbians looked masculine.22 The PHS formulation connects to a broader cultural history of conceptualizing homosexuality as a problem of one gender being trapped in the other

gender's body. Linked to that conceptualization were a range of endeav- ors to scientifically delineate, in a measurable and absolute way, the dif- ference between homosexual and heterosexual bodies. Jennifer Terry has documented the activities of the Committee for the Study of Sex Vari- ants, active in New York City in the 1930s and 1940s. Members of the committee included "psychiatrists, gynecologists, obstetricians, sur-

geons, radiologists, neurologists, as well as clinical psychologists, an ur- ban sociologist, a criminal anthropologist, and a former Commissioner of the New York City Department of Corrections." 23 This truly impres- sive array of professionals, scientists, and academics, connected together through their efforts to delineate how the homosexual was distinct from the heterosexual, conducted its research under the assumption that "the female sex variant would exhibit traits of the opposite sex. In other words, she would invert her proper gender role."24 Under this guiding assumption,

Pathologists looked at skin complexion, fat distribution, coarse- ness of hair, the condition of the teeth, and commented on the overall facial and bodily structure of each subject. Radiologists took x-rays to determine cranial densities of the skull and "carrying angles" of the pelvis in order to identify anomalous gender charac- teristics. A dense skull was presumed to be masculine. "Graceful" and "delicate" pelvic bones were feminine.

Endocrinologists measured hormonal levels.... Sketches of

genitals and breasts were drawn in order to document particular characteristics of sex variance. ... In analyzing the thirty pages of graphic sketches of breasts and genitals, Dr. Dickinson reported on the general genital differences recognizable in the female sex vari-

21House, 82d Cong., 2d sess., 1952, Rep. 1365, 47. 22Of course, masculinity and femininity are culturally coded in very specific ways, so

when one deals with culturally different and diverse populations of immigrants, this stan- dard would provide only a shaky basis for identifying "deviants."

23Jennifer Terry, "Lesbians under the Medical Gaze: Scientists Search for Remarkable Differences," Journal of Sex Research 27 (1990): 319

24 Ibid., p. 321.

"Looking Like a Lesbian" 485

ant population. He identified ten characteristics which he argued set the sex variant apart from "normal women."25

These and other studies were formed around, and helped to keep alive, the notion that lesbians were visibly different from heterosexuals (and that lesbianism and heterosexuality were opposites). Thus, it was not

surprising that immigration officers tried to identify immigrants who

might be lesbians by using the index of gender-inverted appearance. Gay men were similarly sought.

The notion that lesbian and gay immigrants could be identified on the basis of appearance marks out an area where homophobia, racism, and sexism share some commonalities but also significant differences, in terms of an individual's ability to mediate costs associated with looking different. bell hooks, for example, frames the issue by writing, "While we can acknowledge that gay people of all colors are harassed and suffer

exploitation and domination, we also recognize there is a significant dif- ference that arises because of the visibility of dark skin."26

Nice Rodriguez has described altering her sexuality and gender ap- pearance, so as to pass official scrutiny, during her migration from the Philippines to Canada:

On the day of her interview [for a visa at the embassy] she wore a tailored suit but she looked like a man and knew she did not stand a chance.

They did not want masculine women in that underpopulated land. They needed babymakers.... Her wife got mascara and lip- stick and made her look like a babymaker. During her interview with the consular officer she looked ovulating and fertile so she passed it.

Canada had strict immigration laws, but even bugs could sift through a fine mosquito net.27

This account captures the process of "straightening up" that many lesbi- ans undertake when they expect to deal with immigration officials. Straightening up includes practices like growing one's hair and nails, buying a dress, accessorizing, and donning makeup. Clearly there is priv- ilege involved in the fact that the visual markers of lesbianism-unlike visual markers of race or gender-can usually be altered or toned down,

25 Ibid., pp. 323, 332. 26bell hooks, "Homophobia in Black Communities," in her Talking Back: Thinking

Feminist, Thinking Black (Boston, 1989), p. 125. 27Nice Rodriguez, "Big Nipple of the North," in Piece of My Heart: A Lesbian of Colour

Anthology, ed. Makeda Silvera (Toronto, 1992), pp. 35-36.

486 EITHNE LUIBHEID

so as to pass homophobic border guards.28 But at the same time, the fact that one has to straighten up so as to avoid a penalty serves as a reminder that lesbianism is a difference. Consequently, Rodriguez suggests that her self-presentation as an ovulating and fertile woman wearing lipstick and mascara did not erase her lesbian difference, but instead confirmed the "bug"-like status of lesbians within the immigration system. Moni-

toring the border on the basis of visual appearance does lend itself to lesbian and gay male subversion, yet at the same time it marks out an area where the identity the INS is trying to contain and expel is also reestablished and reinforced.

The experiences of women of color like Quiroz further complicate analysis of visually based border monitoring. The visual, or that which

gets seen, is driven by and redeploys particular cultural knowledges and blindnesses. Though the inspector who stopped Quiroz for questioning saw something different about her, there are many questions we need to ask about this. Was there really anything different about Quiroz to see? Was the difference he claimed to see really a lesbian difference, or was it another kind of difference that simply became named as lesbian through a combination of procedures and expediency? What cultural knowledges and blindnesses organized this inspector's regime of seeing, such that he

picked out Quiroz for investigation? What are the connections between the inspector's suspicion that Quiroz was a sexual deviate and the long U.S. history of viewing and treating the bodies of women of color as

sexually other? The use of visual judgment to monitor the border in- volves levels of complexity that have yet to be unraveled, when immi-

grant women of color with diverse sexualities are involved. In the context of the El Paso-Juarez border where Quiroz was

stopped, the regimes through which Mexican immigrants get visually evaluated are further complicated by the historical processes through which that border was imposed. Timothy Dunn explains that "for many decades, the [U.S.-Mexico] border was a tenuous social construct, estab- lished and maintained by force."29 The border, which derived from the Texas Revolution of 1836 and the Mexican War of 1846-48, was "in

large part either ignored or actively contested by Mexicanos in the region ... because it was imposed on them and it disrupted their lives.... The full pacification of the region required some 70 years, and involved the

28 Of course, race and gender are not reducible to visible marks, either, and the visible

certainly need not provide an accurate index of an individual's gender or race. In terms of

race, this point is most thoroughly developed in writings about people with multiracial

heritages. See, e.g., the essays in Maria P. P. Root, ed., Racially Mixed People in America

(Newbury Park, CA, 1992). 29Timothy J. Dunn, The Militarization of the U.S.-Mexico Border, 1978-1992 (Austin,

TX, 1996), p. 6.

"Looking Like a Lesbian" 487

prominent use of a variety of coercive measures both by the state and by Anglo groups."30 The Border Patrol, created by the Immigration Act of 1924, became a key state institution through which the border was maintained. Border enforcement efforts have continually legitimated the subordination of Mexican-origin peoples in the region, regardless of whether they were citizens, residents, or immigrants. The scrutiny Quiroz received from immigration service officials derived from and fur- ther extended this history.31 Immigration service techniques, which in- volved atomizing and evaluating her appearance, documents, and speech, also echoed and extended the historical processes whereby La- tina bodies became racialized and sexualized in the context of imposing the U.S.-Mexico border. As Yvonne Yarbro-Bejarano reminds us, it is not only "our attitudes about our bodies, but our very bodies themselves" that are constructed within social relations, including the relations that Mexican immigrant women negotiate at U.S. southern borders.32

IV

Ways that lesbians (and gay men) might come to INS attention were not restricted to the visible, nor to the existence of police records. Individu- als also became suspected of homosexuality during required premigra- tion medical inspections; through the timing and location of their arrival (e.g., people coming into San Francisco just before the lesbian, gay, bi- sexual, transgender parade); because of information given to the INS by third parties; based on the contents of their suitcases; and as a result of information contained in the forms that all immigrants must complete. Immigration forms included questions about whether or not one was of

good moral character or a sexual deviate or a psychopathic personality, and they also asked the applicant to list all affiliations. Anyone who par-

30Ibid. 31Since Quiroz crossed the border, U.S.-Mexican border relations have undergone

many changes. In the 1980s and 1990s, as part of a renewed war against both drugs and undocumented immigration, the U.S.-Mexico border region has become increasingly mili- tarized. Dunn, among others, has documented the increased deployment of military tech-

nology, expansion of Border Patrol powers, involvement of the National Guard, and the

growth of detention centers in the region, since the early 1980s. Civil and human rights abuses against residents of the region, especially against Latino-origin peoples, have be- come a significant issue. In addition to Dunn, see: Maria Jiminez, "War in the Border- lands," Report on the Americas 26 (1992): 29-33; American Friends Service Committee, Sealing Our Borders: The Human Toll (Philadelphia, 1992); Americas Watch, Brutality Un- checked: Human Rights Abuses along the U.S. Border with Mexico (New York, 1992).

32Yvonne Yarbro-Bejarano, "De-constructing the Lesbian Body: Cherrie Moraga's Lov- ing in the War Years," in Chicana Lesbians: The Girls Our Mothers Warned Us About," ed. Carla Trujillo (Berkeley, 1991), p. 146.

488 EITHNE LUTIRTHEID

ticipated in a lesbian or gay organization potentially had to list that fact. One could, of course, lie or omit information when completing the forms, but only at the risk of a substantial penalty if the INS found out.33 No doubt there were other ways that lesbians and gay men came to INS attention, but these ways have yet to be uncovered. The impact of these methods for identifying women who might be lesbians was undoubtedly differentiated by race, nationality, class, and other features.34

v

Once immigrants came to INS attention as possible lesbians, the means used to officially exclude them was to issue them a Class A Medical Ex- clusion Certificate.35 This practice no doubt inspired Richard Green's ob- servation that "American immigration policy regarding homosexuals has been a marriage of one government bureaucracy with another: the Im-

migration and Naturalization Service (INS) and the Public Health Ser- vice (PHS)."36 It is tempting to assume that use of a medical exclusion

33See National Lawyers Guild, "Crime Related Deportation Grounds and Criminal Of- fenses under the INA," Immigration Law and Crimes (Deerfield, IL, 1995). This chapter notes that immigrants who willfully and materially misrepresent their cases are excludable.

34 For example, Attorney Ignatius Bau related that in Russia, men accused of homosexu-

ality tend to be jailed, whereas women accused of lesbianism tend to be hospitalized. Con-

sequently, the mark (or at least, the accusation) of homosexuality is visible in gender- differentiated ways in documents that Russian immigrants submit to the INS. (Telephone conversation with author, San Francisco, April 1995.)

35When someone seemed potentially lesbian or gay, the INS did not always thoroughly investigate them. Instead, it could dispose of them without generating any record at all. Donald C. Knutson, counsel to the National Gay Rights Advocates, explained how this occurred: "If the border guard suspects because of that person's appearance or some other reason [that he or she is gay or lesbian], the normal practice has been to inform that person that he or she is not entitled to enter the country, that he or she has two options. One, get on the plane or boat or train or whatever and go back where you came from and you won't have any more trouble. If you persist, however, you must go before an immigration judge. You must go before a psychiatrist for a psychiatric examination, and then you will be ex- cluded from this country, deported, and never permitted to come back again. Well, it is no wonder that statistics do not indicate that many people have taken that [second] course."

(See House, Exclusion and Deportation Amendments of 1983, Hearing before the Subcom- mittee on Immigration, Refugees, and International Law of the Committee of the Judi- ciary, 98th Cong., 2d sess., H.R. 4509, 5227, Serial no. 98-72, June 28, 1984, 193.) Consequently, although medical certification provided the means to exclude suspected les- bians and gay men, exclusion could always be implemented more informally, simply by invoking the threat of the medical certification process.

36Richard Green, " 'Give Me Your Tired, Your Poor, Your Huddled Masses' (ofHetero- sexuals): An Analysis of American and Canadian Immigration Policy," Anglo American Law Review 16 (1987): 140.

"Looking Like a Lesbian" 489

certification process signals that medical fears motivated the exclusion-

ary treatment of lesbians and gays. But such a reading does not take into account the full complexity of how exclusion operated. Exclusion never involved only a simple "failure" of medical knowledge. And although medicine is one key discourse through which the homosexual has been constructed as a threatening type, it is not the only such discourse. Rob- ert Podnanski's analysis notes that fears about "morality, subversion, or destitution may have motivated Congress" to enact lesbian and gay ex- clusion.37 A plurality of discourses and institutional practices, not just one, underpinned exclusion. Furthermore, these discourses and practices were neither necessarily rational, nor commensurate with one another.

The workings of exclusion must therefore be grasped not at the level of lack or plenitude of knowledge but, rather, at the level of how homo-

phobia is strategically organized and deployed within institutional cir- cuits of power. As David Halperin writes, "Homophobic discourses are not reducible to a set of statements with a specifiable truth-content that can be rationally tested. Rather, homophobic discourses function as part of more general and systemic strategies of delegitimation."38 Conse-

quently, the practice of issuing Class A Medical Exclusion Certificates to immigrants who were judged lesbian or gay reflected not just that medi- cine was a key discourse through which lesbians and gay men were con- structed as threatening "others" but also that medical practices provided a means through which a larger discourse of homophobia could be mo- bilized, channeled, and legitimated.39 The medical exclusion certification

process connected to the drive for rationalized efficiency. Its use required few additional resources, since the PHS already inspected the physical and mental health of aspiring immigrants, and had a system whereby "unfit" people could be certified for exclusion.40 It was easy to add one

37 Robert Podnanski, "The Propriety of Denying Entry to Homosexual Aliens: Examin-

ing the Public Health Service's Authority over Medical Exclusions," University of Michigan Journal of Law Reform 17 (1983-84): 347.

38David M. Halperin, Saint Foucault: Towards a Gay Hagiography (New York, 1995), pp. 32-33.

39Foucault refers to such organization and deployment as a discursive economy: "The

economy of discourses-their intrinsic technology, the necessities of their operation, the tactics they employ, the effects of power which underlie them and which they transmit-

this, and not the system of representations is what determines the essential features of what

they have to say [emphasis added]." Foucault, History of Sexuality (n. 8 above), 1:68-69. 40The PHS remains involved in inspecting the physical and mental health of aspiring

immigrants to this day. For more information, see Committee of the Judiciary, Subcommit- tee no. 1, House of Representatives, "Inquiry into the Alien Medical Examination Program of the U.S. Public Health Service," Special Series no. 12, Study of Immigration and Popula- tion Problems (Washington, DC, 1963).

490 EITHNE LUIBHEID

more group to the list of those already weeded out.41 The medical ex- clusion certification process further fit into the rationality that stressed scientific management, since it enabled deployment of disparate homo-

phobic practices under the sign of medical intervention. Issuance of medical exclusion certificates to suspected lesbian and gay

immigrants was also congruent with the operations of other government apparatuses. During the massive World War II troop mobilizations, the

handling of homosexuality in the ranks underwent a shift from criminali- zation to psychiatrization. Dishonorably discharging homosexuals for mental illness, rather than charging them with a crime, was deemed pref- erable on various grounds. Mental illness discharges eliminated time-

consuming trials and costly imprisonment; they "made it easier for the

military to extend its antihomosexual apparatus to women"; and the pro- cess could be conducted in a discretionary manner, without strict eviden-

tiary requirements.42 After World War II, these military policies toward homosexuality

"served as a model for senators who, in 1950, launched the most aggres- sive attack on homosexual employees that had ever taken place in the federal government."43 Under Eisenhower, the attack widened further:

The government's anti-homosexual policies and procedures, which had originated in the wartime military, expanded to include every agency and department of the federal government, and every pri- vate company or corporation with a government contract, such as railroad companies and aircraft plants. This affected the job secu-

rity of more than six million government workers and armed forces

personnel. By the mid-1950s, similar policies had also gone into effect in state and local governments, extending the prohibition on

employment of homosexuals to over twelve million workers.... Similar policies were adopted independently by some private com-

panies, and even by such private organizations as the American Red Cross.44

At the same time, the American Psychiatric Association (APA), "building on the standardized nomenclature developed by the Army in 1945," is- sued its first Diagnostic and Statistical Manual of Mental Disorders

41As Foucault phrased it, "The exercise of power is not added on from outside, like a

rigid, heavy constraint ... but is so subtly present in them as to increase their efficiency." See Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, 1979), p. 206.

42Allan Berube, Coming Out under Fire: The History of Gay Men and Women in World War II (New York, 1990), p. 142.

43Ibid., p. 266. 44 Ibid., pp. 269-70.

"Looking Like a Lesbian" 491

(DSM-I) in 1952. The manual "firmly established homosexuality as a

sociopathic personality disorder."45 This APA classification legitimated the PHS practice of issuing Class A Medical Exclusion Certificates to

immigrants who were thought to be lesbian or gay.46 Certification thus shared significant connections with military and employment appara- tuses.

Foucault's History of Sexuality provides further specification of how the PHS certification system organized a circuit of homophobic dis- courses and practices. Within immigration monitoring, procedures were needed to ensure that "the will to knowledge regarding sex . . . caused the rituals of confession to function within the norms of scientific regu- larity."47 Thus, although foreign-born peoples' sexuality could be in-

quired into at various points within the process, there had to be a way to make the process seem legitimately scientific, and to regularize what happened if information such as "I am a lesbian" was revealed. Five pro- cedures, through which these aims could be accomplished, are described by Foucault: "[First] a clinical codification of the inducement to speak .. . [Second] the postulate of a general and diffuse causality ... that endowed sex with an inexhaustible and polymorphous causal power. The most discrete event in one's sexual behavior ... was deemed capable of entailing the most varied consequences throughout one's exis- tence.... [Third] the principle of a latency intrinsic to sexuality ... [that] made it possible to link the forcing of a difficult confession to scientific practice.... [Fourth] through the method of interpreta- tion. . . . [And lastly] through the medicalization of the effects of confes- sion."48 The case of Quiroz offers us an opportunity to examine how these procedures operated together, around the Class A Medical Exclu- sion Certification system, to create an integrated circuit of power, knowl-

edge, and homophobic practices.

VI

The first feature of this discursive circuit involves the "clinical codifica- tion of the inducement to speak." Inducement to speak conjoins neatly with the third feature, the assumption of a "principle of latency intrinsic to sexuality ... [that] ma[kes] it possible to link the forcing of a difficult confession to scientific practice." A very basic "inducement to speak" is

45Ibid., p. 259. 46Jill Esbenshade pointed out to me that there were connections between immigration

and military policies during this time period. Thank you, Jill. 47Foucault, History of Sexuality, 1:65. 48Ibid., 1:65-67.

492 EITHNE LUIBHEID

built into the immigration system, in that one's ability to gain U.S. entry depends on willingness to respond to any and all questions of immigra- tion officials. One risks a substantial penalty for lying or omitting infor- mation that the immigration service might consider pertinent to one's

application.49 This substantial inducement to speak is compounded dur-

ing the experience of being held for secondary inspection, as happened to Quiroz when she attempted to reenter at El Paso. There are variations on how secondary inspection is conducted, but Armendariz offered one

description of how intimidating the process can be: "When you go down to the bridge, these people [immigration officials] are kings. And they act like kings. They put them [i.e., people detained for secondary inspec- tion] in a little room. And they keep them there for hours and don't feed them. And one comes in and asks a few questions and then leaves them alone. Then another comes in: 'We're going to put you in the peniten- tiary for five years, and we're waiting for them to pick you up and take

you to jail. Unless you tell us the truth.' And then they end up transcrib-

ing what they [the detained] said. ... In my 45 years, I have come across at least 1,000 people who insisted they did not say [what the INS state- ment says they said]. Under oath." 50 We do not know if this description reflects Quiroz's experience, but at a hearing before a special inquiry of- ficer, she attempted to refute the statements that the INS obtained from her during questioning. The special inquiry officer's decision related that "the respondent testified in an attempt to impeach her statements (Ex- hibits 3 and 4). She said that the statements were not read to her and that she cannot read or speak English. She denied that she had ever been a lesbian and stated that she has a nine-year-old daughter. She testified that she signed the statements because she was told that everything would be all right."5l Quiroz thus tried to contest the speech that was attributed to her. This is important, because it was primarily on the basis of her speech that she was constructed as a lesbian. If the speech could be impeached, the "evidence" of homosexuality became severely under- mined.52

How the INS overturned Quiroz's impeachment efforts is interesting,

49National Lawyers Guild (n. 33 above). 50Armendariz interview (n. 1 above). 51 Decision of the Special Inquiry Officer (n. 20 above), p. 3. 52 Once her testimony had been taken, corroborating testimony had also been obtained

from one Celia Rosales, named by Quiroz as one of her lovers during the past fifteen months-so it was not her speech alone that constructed her as lesbian. However, in many cases, speech about oneself, without such corroboration, was sufficient proof of homosexu-

ality-making speech, and the relation of speech to the self, a very contested location. For more on the vexed relationship between self-disclosure and homosexual identity, see

Sedgwick (n. 9 above), esp. pp. 69-75.

"Looking Like a Lesbian" 493

because of the connections it reveals between inducement to speak, the

forcing of a sexual confession, and the use of scientific practice to legiti- mate the whole proceeding. The INS testimony read:

To rebut the respondent's testimony impeaching the statements, the Government had the two immigration officers who took the statements testify as witnesses. Their testimony was that the state- ment was read to the respondent at the conclusion, that it was made voluntarily, that she was cooperative, and that her answers were responsive to the questions. Their testimony was also to the effect that there was comprehension between them and the respon- dent in their speaking with her in the Spanish language during the taking of the statement. In passing it is to be noted that Dr. Cole- man [the PHS surgeon who signed the Class A Medical Exclusion Certificate issued to Quiroz] during his testimony, stated that he was present during the taking of the statement (Exhibit 3) and that the respondent replied readily, was relaxed, cooperative, not under duress and did not show hesitancy or embarrassment.

The respondent's attempt to impeach her sworn statements (Ex- hibits 3 and 4) must fail. Each statement recites at the end thereof that it was read to her. The first statement shows a material correc- tion was made ... and this was initialed by the respondent.... I shall therefore consider these two statements [signed by Quiroz] as true and correct.53

In essence, the INS argued that they followed proper procedures in the Quiroz case. These included correct administration of the immigration system, requisite adherence to legal doctrines concerning how evidence may be obtained, and validation by a medical authority.

But procedural propriety is not necessarily the key issue here. More significant, in light of Foucault's description of how an economy of dis- courses becomes organized to generate confession about sexual practices and feelings, is that there are procedures, and they did work together to ensure that Quiroz provided explicit statements about her sexuality. It was INS adherence to proper procedures that led Quiroz to confess "that she has had homosexual desires for at least a year, that she had homosexual relations on numerous occasions over this period of time with two women whom she named, that she had these relations both in El Paso, Texas, and Juarez, Mexico, and that the relations were had with weekly frequency. She described in detail the manner in which these ho- mosexual relations were performed . . . the respondent stated that she enjoyed the sexual relations more with women than with men, and that

53 Decision of the Special Inquiry Officer, pp. 3-4.

494 EITHNE LUIBHEID

she had entered into such relations voluntarily." 54 The very scientific and correct nature of the INS procedures operated as relations of force that induced a certain kind of speaking, or confessing, by this woman. It is difficult to believe that Quiroz would have freely volunteered this infor- mation to the INS, without being compelled to do so by the procedures. That INS procedures were scientific and proper, however, ensured their

legitimation, and meant that their operation as relations of force had become invisible. Consequently, Quiroz's confession, but not the exis- tence of procedures that compelled the confession, became the subject of adjudication in her case. Unfortunately for Quiroz, the alleged per- versity of lesbians and gay men is often backed up by the claim that they willingly talk about their deviant sexual practices so as to recruit others into lives of depravity. The erasure of the induced nature of Quiroz's speech subjected her to this derogatory construction, which reconfirmed the original contention of the government about her undesirability. But the fact that her speech about sex was induced surely ranks as a signifi- cant perversity, too.55

A third feature of the economy of discourses, referred to by Foucault and evident in the medical exclusion process, was "the postulate of a

general and diffuse causality ... that endowed sex with an inexhaustible and polymorphous causal power. The most discrete event in one's sexual behavior . . . was deemed capable of entailing the most varied conse-

quences throughout one's existence."56 In Quiroz's case, this feature is

perhaps clearest in the Board of Immigration Appeals judgment that "her relations with several women on many occasions demonstrated a

pattern of behavior which was antisocial, irresponsible, lacking in social

judgment and 'without any true judgment of what the results may be'

(Doctor Schlenker's testimony, p. 33). To use the Public Health Service

parlance, she has manifested a disorder of the personality which has

54Ibid., p. 1. 55The question of using "scientific practice" to "induce" immigrants to speak and to

"force a difficult confession" has played out in many ways in immigration monitoring of lesbians and gay men. The PHS suggested, in a 1952 report to Congress, that some people might suffer from a "homosexuality of which the individual himself is unaware." In those cases, "some psychological tests may be helpful in uncovering homosexuality" (House Rep. 1365 [n. 21 above], p. 47). Green speculates that the tests in question were Rorschach inkblot tests (see Green [n. 36 above], 142, n. 7). Public Health Service psychological tests were not the only means used to force a confession about sexuality-a more dramatic ex-

ample concerns Mexican Jaime Chavez, who was "held incommunicado under armed guard for over twenty-four hours [and] subjected to abusive questioning and an abusive search"

(Exclusion and Deportation Amendments of 1983 [n. 21 above], p. 185). Chavez was treated in this way because he was suspected of homosexuality, based on the contents of his luggage.

56Foucault, History of Sexuality (n. 8 above), 1:66.

"Looking Like a Lesbian" 495

brought her into conflict with 'the prevailing culture.'" 7 The mere fact

that Quiroz testified to having sexual relations with two women was deemed evidence that she was irresponsible, antisocial, and personality disordered. The principle of "diffuse causality" is an ever-present re- source on which the dominant culture can draw to justify penalizing les- bian and gay existence.

The fourth and fifth features of the economy, which visibly worked through the Class A Medical Exclusion Certificate system, were "meth- ods of interpretation . . . [and] medicalization of the effects of confes- sion." 58 In immigration exclusion cases, issues of interpretation play out at every stage of the process. For example, two key interpretive issues (along with many lesser ones) that emerged in the course of Quiroz's extended court battle to overturn the deportation order against her were: was she a lesbian, and, if so, did that mean she was necessarily a

psychopathic personality? (After all, exclusion was based on a certificate issued to her for being a psychopathic personality, not for lesbianism.) The law became the key site within which these interpretive battles were fought-yet, medical and psychiatric interpretation also had a role within this process.

As we have seen, Quiroz's first line of defense in the preliminary case was to challenge the manner in which her statements were obtained and used as proof of homosexuality. She also bluntly denied that she was a homosexual and invoked the fact that she had a daughter as clear evi- dence of her sexual relations with men. Invoking her daughter played into hegemonic constructions of female heterosexuality. Quiroz's second line of defense drew on medical and psychiatric testimony to suggest that being a homosexual was not necessarily equivalent to being a psycho- pathic personality.

However, the government found that Quiroz's statements to the INS were unimpeachable. They thus found her to be a homosexual, even if she had a daughter. Regarding the second issue, the government ac- knowledged that there was a possible gap between homosexuality and a

psychopathic personality. They even included the testimony of one of the PHS surgeons, who had signed Quiroz's exclusion certificate, that "there are persons who are sexual deviates who are not afflicted with psy- chopathic personality . . . but [the PHS doctor] is required to certify all homosexuals as psychopathic personalities regardless as to how he pri- vately might feel." 59 Nonetheless, the INS ruled:

57Decision of the Board of Immigration Appeals, case A-8707653, U.S. Department of Justice, Washington, DC, June 2, 1960, p. 7.

58Foucault, History of Sexuality, 1:66-67. 59Decision of the Special Inquiry Officer, p. 2.

496 EITHNE LUIBHEID

The history of the enactment of Section 212(a)(4) of the Immigra- tion and Nationality Act shows that Congress intended that homo- sexuals and other sex perverts were to be excluded from admission to the United States and that rather than make a separate class of homosexuals and sex perverts within the excluding provisions, these individuals are to be included within the category of individ- uals afflicted with psychopathic personality.... Notwithstanding the medical opinion of both physician witnesses that a person who is homosexual is not per se afflicted with psychopathic personality and that other character traits must also be considered, Congress has intended that persons who are homosexuals are to be consid- ered as being afflicted with psychopathic personality. It is on the basis of this clear intent of Congress that the United States Public Health Service, in its manual for the examination of aliens, classifies homosexuals and sexual deviates as being afflicted with psycho- pathic personality.60

Thus, within a legal framework, congressional intent to exclude lesbians and gay men-grounded in Congress's plenary power over immigration, which is not bound by common legal and procedural standards-was affirmed.61 The order deporting Quiroz stood.

When the case was appealed to the Board of Immigration Appeals (BIA), Quiroz essentially employed the same two lines of defense. But the BIA responded even more harshly than had the special inquiry offi- cer. Regarding the question of whether the evidence established that she was a homosexual, members of the BIA affirmed that Quiroz's original statements were unimpeachable. The BIA also addressed the fact that Quiroz had a daughter. The ruling related the circumstances behind the birth of the daughter: "When she was around sixteen years of age, re-

spondent lived for about two months with a man who then deserted her, apparently when she became pregnant."62 The board opinioned that "that affair of ten years ago does not establish that she is not now a ho- mosexual" and furthermore, reconstructed that affair as a possible reason for her (to them, confirmed) present homosexuality. "There may be a causal connection between this earlier incident and her present prob-

60Ibid., p. 5.

61Historically, Congress has enjoyed plenary power over immigration matters, such that: "Congress has unbounded power to exclude aliens from admission to the United States; Congress can bar aliens from entering the United States for discriminatory and arbi-

trary reasons, even those which might be condemned as a denial of equal protection if used for purposes other than immigration." See Matter of Longstaff, 716 F. 2d 1439 (5th Cir., 1983). Plenary powers are intended to ensure national sovereignty.

62 Decision of the Board of Immigration Appeals, p. 4.

"Looking Like a Lesbian" 497

lems." Quiroz's efforts to reconstruct herself within a heterosexual framework, through reference to the birth of her daughter, thus back- fired, since the BIA used these same facts to advance the common homo-

phobic proposition that unfortunate experiences with a man are the reason why a woman turns to lesbianism.63 This only strengthened their case.

Regarding the possible gap between homosexuality and psychopathic personality, the BIA tartly ruled that "each psychiatrist or psychoanalyst may construe the term 'homosexual' and 'psychopathic personality' ac-

cording to his own perspective, but within the Public Health Service and the Immigration Service, in order to achieve a degree of uniformity and fairness in the interpretation and administration of this law, we are bound to a more rigid system of classification." Therefore, within this

interpretive struggle, the exigencies of uniform administration took pre- cedence over psychiatric opinion. Not only did administrative need re- quire that homosexuality be treated as equivalent to psychopathic personality, but furthermore, the BIA ruled, the two categories actually came together in the person of Quiroz herself. Because Quiroz had en-

gaged in sexual relations with women, "it is our opinion that the respon- dent falls within the class of (psychopathic) persons defined by the two doctors who testified in this case." Not surprisingly, the BIA concluded that "since Congress unquestionably intended to include homosexuals within the class of aliens afflicted with psychopathic personality, no find-

ing is possible in this case except that she is subject to deportation."64 At the district court level, to which Quiroz next appealed, her counsel no

longer tried to refute the finding that she was a homosexual. Instead, he concentrated on trying to undo the contention that a homosexual is

necessarily a psychopathic personality. But the district court merely af- firmed the legal overlap between the two, ruling that "since the record shows the plaintiff is a homosexual she is therefore a person of psycho- pathic personality."65

The Fifth Circuit brief for Quiroz again hinged on the argument that "the court erred in concluding as a matter of law that since the record shows that plaintiff is a homosexual, she is, therefore, a person ofpsycho-

63This argument makes heterosexuality the norm from which all other sexualities are both derivative and deviant; it makes all women's sexual agency derivative of male actions; thus, it implies lesbianism is the result of heterosexuality gone wrong, become spoiled; in this way, it renders impossible the affirmation of women loving women, while constructing lesbians as degraded, sick, and inferior.

64Decision of the Board of Immigration Appeals, p. 7. 65 Findings of Fact and Conclusions of Law, U.S. District Court for the Western District

of Texas, El Paso Division, in Civil Action no. 2175, Sara Harb Quiroz v. Marcus T. Neelly, August 22, 1960, p. 2.

498 EITHNE LUIBHEID

pathic personality." 66 Various arguments were marshaled to support this contention. The government's counterbrief acknowledged that Con-

gress had not defined the term "psychopathic personality" and that there were no cases on which to rely for precedent. Nonetheless, Congress had (and has) the right to decide who shall be excluded from immigrating, and government documents suggested that Congress intended to ex- clude lesbians and gay men. Quiroz was sent yet another letter that or- dered her deportation. Ultimately, Quiroz's lawyer was unable to drive a

wedge between the notion of equivalence between homosexuality and

psychopathic personality, despite engaging in a prolonged interpretive battle within the courts. He was also unable to challenge the evidence that was used to construct her as homosexual.

Quiroz had one last card to play, though. On June 23, 1961, the Fifth Circuit Court ruled against her and ordered her deportation by August 15, 1961. On August 2, 1961, she married Edward Escudero, and filed a motion to reopen her case. We will probably never know the circum- stances surrounding this marriage. Was Quiroz a lesbian engaging in a sham marriage, with Escudero as either a willing participant or a dupe? Or did she enter into the marriage in good faith, perhaps trying to "go straight," or even from honest feelings of love, attraction, and affection? Whatever the circumstances, the motion filed on her behalf requested the right to reopen her case so as to "present evidence of her marriage and full rehabilitation, being new facts which touch upon the issue of

deportability.... That since the order of deportation was entered herein, your applicant has married Edward Escudero, who joins this ap- plication, and that she is prepared to prove that she is, at this time, a normal individual and no longer a psychopathic personality."67 Given the timing of the marriage, it certainly seems to constitute an effort to take the charges brought against her and use them to craft a response that satisfied dominant cultural terms regarding women and sexuality. The argument that her marriage offered evidence of "rehabilitation" and of becoming "a normal individual" fits neatly into mainstream assump- tions that homosexuality can be "cured" (and even better, that lesbi- anism can be cured by finding the right man).

It was a brave effort. But marriage, too, failed to prevent Quiroz's deportation. This is because, as the INS noted in their "brief in opposi- tion," "According to counsel's motion the new facts to be proven at the

66 Sara Harb Quiroz v. Richard C. Haberstroh, U.S. Court of Appeals for the Fifth Cir- cuit, case no. 18724, Brief of the Appellant, (March 1961), 2. (A more precise date is not given.)

67Motion to Reopen, in the Matter of Sara Harb Quiroz, Now Sara Harb Escudero, case no. A8 707 653, To the District Director of Immigration and Naturalization Service of El Paso, Texas, August 7, 1961, p. 1.

"Looking Like a Lesbian" 499

proposed reopening will show that the respondent has married since the order of deportation was entered, is now a normal individual and no longer a psychopathic personality. Even if all this should be proven, no application is apparent to the matter of the respondent's deportabil- ity, which is based on her condition at entry on January 6, 1960 and not on circumstances which may have arisen since that time" (emphasis added).68

Both sides thus tried to play on the temporal ambiguity of when one might be said to have "become" homosexual. Quiroz initially tried to deny her homosexuality; then she presented the birth of her daughter as evidence that she had had sexual relations with a man sometime in the past (which might cast doubt on present allegations of homosexuality); then, through marriage, she tried to construct homosexuality as a prior condition that was now "cured." The INS, for its part, refuted her initial denials. The BIA hearing then suggested that the circumstances sur- rounding the birth of her daughter may have "caused" her lesbianism. Finally, they invoked their legal power by which lesbianism was defined as significant at time of entry, regardless of any changes later. In the in- terpretive battle over the construction and penalizing of lesbianism, the INS eventually won.

We will never know with absolute certainty whether Quiroz was a les- bian. After all, lesbianism has no clear, predefined content that allows us to draw a marker between it and other forms of sexuality. But her case shows how the immigration service, in conjunction with larger circuits of power and knowledge, established the boundaries of who and what counted as a lesbian, and then confined Quiroz within that definition. The effects of Quiroz's battle and its resolution were indeed "medi- calized" (the fifth feature mentioned by Foucault): Quiroz's Class A Medical Exclusion Certificate stood, and she was deported.

Quiroz's refusal of the lesbian label was certainly intended to avoid deportation. But other reasons may also have motivated her. Perhaps she did not consider herself a lesbian, despite reporting sexual relations with women. Anthropologists such as Joseph Carrier have documented how the construction of male homosexuality in Mexico differs from dominant U.S. constructions, such that men who have sexual relations with other men are not necessarily stigmatized as homosexual.69 Carrier's work raises questions about how lesbian identity was constructed in the late 1950s and early 1960s in Mexican and U.S. communities that were fa-

68 U.S. Department of Justice, Immigration and Naturalization Service, Brief in Opposi- tion, in the matter of Sara Harb Quiroz, case. no. A8 707 653, August 23, 1961.

69See Joseph Carrier, De los otros: Intimacy and Homosexuality among Mexican Men (New York, 1995).

500 EITHNE LUIBHEID

miliar to Quiroz. It also raises questions about how Quiroz, who was situated at the intersection of several cultures, communities, and tradi- tions, negotiated her sexual identity, which may have changed over time.70 Though she reported sexual relations with women, did this make her a lesbian? If so, according to whose definition?

Even if Quiroz considered herself a lesbian, claiming the label was

undoubtedly complicated by being a Mexican immigrant woman living in a U.S. border city. Oliva Espin notes that immigrant lesbians often remain situated within the contradictory space "between the racism of the dominant society and the sexist and heterosexist expectations of [their] own community." 71 Under those circumstances, female sexuality becomes a site through which cultural contestations are played out. Thus, Cherrie Moraga, among others, eloquently documents how de-

claring oneself a lesbian leaves Latinas vulnerable to the charge of ven- dida, or race traitor.72 Yolanda Leyva further explains that silence, rather than public admission, enables many Latina lesbians to remain con- nected to family and community. "Latina lesbians have survived because of that silence, and the protection it has provided, despite the many lim- its and compromises it has imposed." 73 The INS charge that Quiroz was a lesbian, whether true or not, shattered the protective silence and jeop- ardized her access to family and community resources. The lesbian label

may also have followed her to Mexico, through the gossip of other re- turnees, or when she was asked to explain her deportation to family and friends. Resettlement becomes very difficult under those circumstances. Quiroz's efforts to refuse the label of lesbian must be framed, therefore, within the context of multiple jeopardies and competing pressures that she faced as an immigrant woman living in a U.S. border city with an anti-Mexican history, as well as the incommensurabilities between differ- ent cultural practices of constructing and naming sexual identities.

70Thomas Almaguer has documented that Chicano men negotiate sexual identity in the intersections of Mexican/Chicano and dominant U.S. sexuality constructions. (See Thomas Almaguer, "Chicano Men: A Cartography of Homosexual Identity and Behavior," in The Lesbian and Gay Studies Reader, ed. Henry Abelove et al. [New York, 1993], pp. 255-73.) How that process of negotiation might have occurred for immigrant Mexican women in the late 1950s is something about which we can only speculate. But we know that immigrant lesbians do not easily fit into what Leyva calls "the Anglo lesbian paradigm of the modern lesbian identity" (see Leyva [n. 17 above], p. 149), and other identity forma- tions and traditions must be grasped if we are to theorize the richness of immigrant les- bian history.

71 Oliva M. Espin, "The Immigrant Experience in Lesbian Studies," in Zimmerman and McNaron, eds. (n. 17 above), p. 82.

72Cherrie Moraga, Loving in the War Years: lo que nunca paso por sus labios (Boston, 1983), pp. 90-142.

73 Leyva, p. 145.

"Looking Like a Lesbian" 501

For these reasons, and in the absence of documents other than official ones, I have resisted offering a judgment about whether or not Quiroz was a lesbian. My resistance is intended to foreground the dangers of

reading immigrant women's sexualities within dominant U.S. frame- works-even when the reading is intended to assist in the formation of a counterhistory-because unqualified use of the term "lesbian" may arrogate immigrant women's experiences to U.S.-based paradigms that do not allow for theorization of the ways that immigrant status, allied with experiences of racism, cultural difference, and class exploitation, complicate sexual identities. As Quiroz's case shows, this arrogation may occur in conjunction with systemic violence that is imposed by the state (in the form of deportation). But it is important to emphasize that lesbi- ans do cross borders. Immigrant lesbian lives remain little documented or understood, however.74

VII

In 1990, Congress repealed immigration provisions that excluded lesbi- ans and gay men. A congressional report stated that "in order to make it clear that the U.S. does not view personal decisions about sexual orienta- tion as a danger to other people in our society, the bill repeals the 'sexual deviation' exclusion ground [in immigration]." The end of exclusion based on sexual orientation has received little attention in studies of im-

migration. However, a congressional report demonstrates one way that this policy change has been framed and explained: "The law also needs to be updated in its treatment of sexual orientation. The term 'sexual deviation' (INA 212[a][4]) was included with the other mental health exclusion grounds expressly for the purpose of excluding homosexuals. Not only is this provision out of step with current notions of privacy and

personal dignity, it is also inconsistent with contemporary psychiatric theories.... To put an end to this unfairness, Congress must repeal the 'sexual deviation' ground [for immigration exclusion]."75

Tempting as it is to attribute the repeal of exclusion as an outgrowth of current notions of privacy and personal dignity and contemporary psychiatric theories, this explanation is partial at best. As discussed

74Espin, p. 79. See also Lourdes Arguelles and B. Ruby Rich, "Homosexuality, Homo-

phobia, and Revolution: Notes toward an Understanding of the Cuban Lesbian and Gay Male Experience," pt. 1, Signs: Journal of Women in Culture and Society 9 (1984): 683-99, and "Homosexuality, Homophobia, and Revolution: Notes toward an Understanding of the Cuban Lesbian and Gay Male Experience," pt. 2, Signs: Journal of Women in Culture and Society 11 (1985): 120-35.

75House, "Family Unity and Employment Opportunity Immigration Act of 1990," 101st Cong., 2d sess., September 19, 1990, Rep. 101-723, parts 1 and 2, 56

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above, exclusion never hinged solely on medical or psychiatric knowl-

edge; rather, that knowledge was deployed as part of a larger strategic formation of homophobic discourses and practices. Alterations in the

composition of that knowledge were not sufficient to generate repeal, unless alterations also occurred in the discursive economy as a whole.

One of the most significant alterations to the discursive economy that

organized exclusion occurred more than a decade before the 1990

change. In 1979, the surgeon general directed the PHS to stop automat-

ically issuing Class A Medical Exclusion Certificates solely on the basis of homosexuality. One factor bearing on the Surgeon General's decision was the fact that in 1973, trustees of the American Psychiatric Associa- tion (APA) "voted to remove homosexuality per se from the categories of mental disorder. In the next year, a referendum upholding the decision was passed by the full APA membership." 76 Until this APA action, homo-

sexuality was listed as an illness; and even if its exact nature was disputed, the fact it was officially an illness meant that lesbians and gay men came under PHS purview. After 1974, however, in the absence of an official illness categorization, the PHS was arguably no longer responsible for lesbians or gay men (unless they had other medical or mental condi- tions).77 Other factors, too, undoubtedly had a bearing on the surgeon general's decision.

When the surgeon general declared that the PHS would no longer automatically issue Class A Medical Exclusion Certificates to lesbians and gay men, he evoked a sharp response from John M. Harmon, Assis- tant Attorney General for the Department of Justice. In a memorandum to David M. Crosland, Acting Commissioner of the INS, Harmon exco- riated the surgeon general for his decision and suggested he had over-

stepped the bounds of his authority. "Congress clearly intended that homosexuality be included in the statutory phrase 'mental defect or dis- ease' and the surgeon general has no authority to determine that homo- sexuality is not a 'mental defect or disease' for the purpose of applying

76Green (n. 36 above), p. 143. For a more detailed discussion of the APA's decision, see Ronald Bayer, Homosexuality and American Psychiatry: The Politics of Diagnosis, 2d ed. (Princeton, NJ, 1987). Neil Miller mentions that in an effort to contest the automatic labeling of homosexuality as a mental illness, gay activists "zapped" APA conventions and meetings, and at one panel discussion of the issue, "a psychiatrist ... created a sensation by announcing that he was gay. It marked the first time that any psychiatrist in the United States had come out publicly; the drama of his revelation was heightened by the fact he found it necessary to wear a mask and speak through a voice altering device." See Neil Miller, Out of the Past: Gay and Lesbian History from 1869 to the Present (New York, 1995), p. 256.

77Thanks to Carolyn (Patty) Blum for her comments on this matter.

"Looking Like a Lesbian" 503

the [Immigration] Act," stated the memo.78 Harmon ruled that the INS remained bound to exclude lesbians and gay men, even without PHS assistance. In 1980, the INS announced how exclusion would operate: "If an alien made an 'unsolicited, unambiguous admission of homosexu- ality' to an INS inspector or was identified as homosexual by a 'third party who arrived at the same time,' the alleged homosexual would be subject to a secondary inspection. At that inspection, the person would be asked whether he or she was a homosexual. If the person answered 'no,' entry would be permitted. If the person answered 'yes,' a formal exclusionary hearing would follow. "79

In some respects, this approach to exclusion was not very different from before. Well before 1980, the INS relied on self-disclosure and identification by a third party (though not necessarily a party who arrived at the same time) to pick out immigrants who might be lesbians or gay men. Other identificatory practices, such as criminal record checks and inclusion of key questions on immigration application forms, operated both pre- and post-1980. Perhaps the main difference was simply the elimination of one step in the exclusion process: whereas pre-1980, a suspected lesbian or gay immigrant was sent to the PHS for certification before exclusion, after 1980, the INS skipped the certification process and excluded directly.

The growing questions and criticisms directed toward lesbian and gay exclusion in the 1980s therefore reflect not the implementation of new, egregious forms of border control, but the loss of the certification pro- cess. An array of practices were suddenly unbound from the legitimation offered by a medical exclusion certificate, in a way that made them avail- able for further questioning and contestation. In addition, new political and social formations, including lesbian/gay legal defense and political advocacy groups, had also emerged, and they directly contested practices like exclusion. During the 1980s, "the question of how to identify lesbi- ans and gay men had become an increasingly vexed one.... The INS's stated policy of relying on voluntary admission drew an openly arbitrary line between lesbians and gay men who, perhaps unaware of the conse- quences, announced their homosexuality to INS inspectors and those who did not. The enforcement of the procedure was, as even the State Department and some INS officials admitted, uneven and arbitrary . .. the legal uncertainties [arising from contradictory court rulings in the 1980s] and administrative inconsistencies surrounding the exclusion

78John M. Harmon, assistant attorney general, to David L. Crosland, acting commis- sioner, INS memorandum, December 10, 1979, p. 2.

79Green, p. 143

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had made an already controversial provision increasingly difficult to jus- tify."80 Concern about discrimination against lesbians and gay men was voiced. Some public officials suggested that "a person's sexual orienta- tion should be a private matter that had no relevance to immigration."81

The expression of these problematizations continued unchecked, since neither the medical certification system remained, nor did an

equally effective new organization of homophobic discourses emerge. The diversity of problematizations meant that a wide spectrum of groups could find something to support in proposals to repeal the exclusion. "Those who supported [the exclusion's] elimination spanned a broad

ideological range, including the Carter, Reagan, and Bush administra- tions, the Select Commission on Immigration and Refugee Policy, the American Psychiatric Association, and numerous civil rights organiza- tions."82 In 1990, Congress repealed immigration exclusion based on sexual deviation.

VIII

Since 1990, lesbians and gay men are no longer automatically debarred from emigrating to the United States. The change is significant. But the

meanings of this change must be carefully evaluated. After all, although lesbians and gay men are no longer excluded, judicial interpretations of

aspects of immigration law remain "heavily influenced by the categoric exclusion of lesbians and gay men under the 1952 Act" and by a hetero- sexual norm.83 Lesbians and gay men are still likely to be excluded for

lacking good moral character. They also remain unable to use long-term relationships with U.S. citizens or residents as a basis for gaining their own U.S. residency (a right that is available to male/female couples). Once within the United States, lesbians and gay men must continually contend with homophobia.84

These are some of the effects of homosexuality that continue to make

immigration difficult, even after 1990. To assess how homosexuality is

likely to remain salient in immigration in the foreseeable future, we would need to examine the operation of major discourses and practices that are critical to the current production of homosexuality. We would also need to analyze how lesbian and gay identities may be reproduced within new collectivities that are no longer delineated within clear les-

80Minter (n. 16 above), pp. 780-81 81House, 100th Cong., 2d sess., Rep. 882, 23-24. 82Minter, p. 781

83Ibid., p. 787. 84There are also difficulties with accessing political asylum, especially for lesbians.

"Looking Like a Lesbian" 505

bian or gay parameters. For example, HIV has become a significant issue in the administration of the immigration system. And HIV, as Katie King observes, is both altering the terrain of what counts as the gay/lesbian community, and producing new collectivities that cannot be captured within a gay/straight model.85 In addition to the reconfiguration of identities caused by HIV/AIDS, the 1990 Act also established "a new

general category of exclusion based on mental or physical disorders. Al-

though general in nature, this ground is linked carefully to behavior and

potentially harmful activities ... two requirements must be met if an alien is to be excluded because of a mental or physical disorder. The alien must be determined to have a mental or physical disorder and a history of behavior (or current behaviors associated with the disorder) that may pose a threat to the property or the safety of the alien or others . . . the standard is based on the behavior of the alien." 86 The standard of "harm- ful activities" and behaviors has the potential to be unfairly applied to lesbians and gay men in particular, as well as to produce new minoritized collectivities that include but are not limited to lesbians and gay men.

Clearly, then, despite the 1990 changes, lesbian and gay identities continue to have various kinds of salience in immigration. Nonetheless, the act is a key piece of legislation that makes new social justice strategies possible. Because the act protects foreign-born lesbians, gay men, and "queers" from automatic exclusion, a national movement to secure spousal immigration privileges for same-sex couples, as well as novel ways of publicly linking struggles around homophobia, racism, and anti-

immigrant sentiment, have emerged.87 Pre-1990, these political projects were greatly handicapped (if not virtually impossible), since foreign- born people who identified as lesbian, gay, or queer risked exclusion by announcing their presence, publicizing their struggles, or participating in organizing.

Repeal of exclusion based on sexual deviation is intelligible within a framework that is sensitive to the operations of power. Foucault writes:

Power must be understood in the first instance as the multiplic- ity of force relations immanent in the sphere in which they operate and which constitute their own organization; as the processes

85 Katie King, "Local and Global: AIDS Activism and Feminism," in Camera Obscura 28

(1992): 80. Note that in the late 1980s, HIV became a grounds for immigration exclusion, "although the law did not specifically list it as such. In 1993, Congress added HIV to the list of grounds for exclusion in the immigration and Nationality Act." See "HIV as a Grounds of Inadmissibility: How It Works," in Asylum Based on Sexual Orientation: A Re- source Guide, ed. Sydney Levy (San Francisco, 1996), I: E, p. 25.

86House Report 101-723 (n. 75 above), pp. 52-53. 87This is a project that intersects with the more domestically oriented campaign for

same-sex marriage.

506 EITHNE LUIBHEID

which, through ceaseless struggles and confrontations, transforms, strengthens, or reverses them; as the support which these force re- lations find in one another, thus forming a chain or system, or on the contrary, the disjunctions and contradictions which isolate them from one another; and lastly, as the strategies in which they take effect, whose general design or institutional crystallization is embodied in the state apparatus, in the formulation of the law, in the various social hegemonies.

88

Lesbian and gay exclusion functioned until 1990 not because of its

grounding in rational thought, but because of its ability to weave to-

gether a range of disparate, sometimes contradictory, and often clearly unreasonable homophobic discourses and practices, into a chain or sys- tem. This weaving together found institutional crystallization in the Class A Medical Exclusion System, which was supported by "the state

apparatus, in the formulation of the law, [and] in the various social hege- monies." At the same time, this formation generated its own "disjunc- tions and contradictions." Contradictions included the ways that the formation contributed to production of the very sexuality against which it claimed to guard the nation. Quiroz's case offers a valuable window into the ways that border monitoring enabled the production of official

immigration service definitions of lesbianism, around which exclu- sions-that potentially affected not just self-identified lesbians but any woman who did not clearly conform to current heterosexual standards- were organized. Quiroz's case, and her strategies of resistance, also pro- vide information about the ways that sexual monitoring of the border was gender differentiated, even though suspected lesbians and gay men were barred from entry under a shared provision. As the case makes clear, racial and class histories integrally structure how gender and sexual iden- tities are produced, negotiated, oppositionally deployed, and sanctioned at the border. Quiroz's case also raises critical questions about how mi-

grant women negotiate sexual identities and communities when the threat of state-sanctioned exclusion or deportation structures their op- tions. Though an end to exclusion in the broadest sense has not oc- curred, the transformation of conditions of struggle, and of relations between affected individuals and groups, is beyond question.

88Foucault, History of Sexuality (n. 8 above), 1:92-93.