On October 3, 2018, the US State Department released a bulletin announcing that, “Effective
immediately, U.S. Embassies and Consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses.”(1)
This new policy requires that the same-sex partners of diplomats and staff of U.S.-based international organizations, such as the United Nations, International Monetary Fund and the World Bank be married in order to qualify for a visa to remain in the US. Moreover, this policy represents a significant reversal of the policy in existence since 2009 that included domestic partners as “family” if they formed part of the household of a diplomatic agent, and met the other criteria set forth in that policy.(2) This allowed the unmarried, same-sex domestic partners of foreign diplomats and their staff to obtain spousal visas, known as G-4 visas.
Although the State Department claims that the new restriction on same-sex partner visas is “to help ensure and promote equal treatment” between straight and gay couples, the effect is decidedly disparate. Unlike heterosexual marriage, same-sex couples may not be able to legally wed in their countries of origin, and may, in fact, expose themselves to criminal penalties for doing so. Only 12% of U.N. member countries recognize same-sex marriage, and the State Department has represented that approximately 105 families will be impacted by the policy change, which will potentially impact not only same-sex partners, but children of those same-sex partners, who, under the new policy, will also be denied visas if their parents are not married.
According to Human Rights Watch, only 25 countries in the world recognize some form of same-sex marriage.(3) In more than 70 other countries, same-sex marriage is punishable by law with penalties that may include public caning, fines, imprisonment, or worse. In countries like Saudi Arabia and Iran, people can still be executed for being homosexual.
Last month, two women were publicly caned before 100 onlookers by a Malaysian Shariah court after they were arrested in April and plead guilty to charges of lesbian sex in September. Each woman was sentenced to six cane strokes and a fine of approximately $800. The judge called the verdict a lesson for society.(4) The event was met with international condemnation, as well as concerns over LGBT discrimination.
The State Department has indicated that domestic partners of diplomats posted in the United States will be required to present proof of marriage to the State Department by December 31st, or they will be required to leave the US within 30 days. Some of these families will be required to choose between marrying in the US in order to stay and possibly facing criminal penalties upon returning to their countries of origin, and choosing to separate and leave the US after the December 31st deadline. The number of foreign nationals who will be ineligible to apply for visas in the future is unknown.
The new policy, while couched as helping to ensure and promote “equal treatment” and parity between same-sex and heterosexual couples, imposes quite the opposite effect. While marriage equality is the law in the US, the new policy may target foreign same-sex partners in their home countries and has the potential to separate families and cause foreign individuals working here to choose between their careers and keeping their families intact.
(4) Laignee Barron, “Malaysia Canes Two Women for Same-Sex Relations Amid Growing Concerns Over LGBT Discrimination,” Time Magazine, September 3, 2018 http://time.com/5385308/malaysia-caning-women-lesbian-sex/