In The Subject on Trial, ch.3 of Juana MarÍa RodrÍguez’ book Queer Latinidad, RodrÍguez writes about Marcelo Tenório’s legal battle to gain political asylum in the U.S. His applies for asylum after experiencing a violent assault in Brazil. His assailants attacked him based on his perceived gay identity, among other factors, and his lawyer “filed a claim preventing his deportation from the United States on the grounds that homosexuals are systematically persecuted in Brazil…” (89.)
I chose to read this chapter because I am currently taking a class called “Psychology and the Law.” So I was very interested when RodrÍguez said:
The type of language summoned by the BIA speaks to the inextricable linkages between psychiatric and legal discourses. As Foucault has argued, psychology establishes definitions of the normative and the law regulates its enforcement. This discursive coupling of criminality and deviance has never been deployed as masterfully as it is in the psycho-legal construction of the homosexual. Add to this a history in this country of legal, psychosocial, and media depictions that continually criminalize the image of the man of color, and Marcelo Tenório, poor, Black, immigrant, illegal, queer, and male, is inextricably cast as criminal (89.)
The argument “psychology establishes definitions of the normative and the law regulates its enforcement” is applicable here. In Tenório’s case they use psychological definitions of “gay” or “homosexual” as a normal, non-deviant identity give Tenório legal rights. At the same time, the system can work the other way around. In other words, not only psychology can establish the definition of normative, but the law can too. Gay rights advocates supported this case and fit it into their own narratives, because they knew that when Tenório won, homosexuality as an identity would be one case closer to mainstream. Law not only enforces the definitions of deviance and normalcy but also gives them further meaning and clarification. For example, Rodríguez cites how Alvarez “had to establish homosexual identity as ‘an immutable characteristic’” in order to argue that Tenório needed asylum (89). So for those gay rights activists whose foundational argument is that gays deserve equal rights because they “are born gay” or “can’t help being gay,” etc. this case is a victory in that it reinforces that as the national understanding of gay identity.
(Though I am actually confused, because in a later paragraph the Lambda Legal defense and Education Fund apparently “succeeded in constructing sexual orientation not as an essential biological category, but as a complex interplay of sexual practice, desire, identity, and affiliation”(90). So I am not sure if this implies that in this case they were able to exceed this BIA definition which requires gayness to be an “immutable characteristic.) I guess the definition is adhered to and challenged because on p96 it says “Alvarez succeeds in both legally claiming and theoretically problematizing a fixed homosexual identity as an “immutable characteristic.”
Yet while Tenório’s case is doing the work of defining gayness for activists in the US, the complexity of his case is not recognized. Gayness is whitewashed. The school of thought “I was born this way” usually goes with “we are a minority, we deserve equal treatment.” It seems like this structure of thinking does not allow for intersecting identities, usually. Because the main assumption behind it is: people who are marginalized because of being gay need to be accepted into the mainstream and treated equally. It makes no allowance for ways that gayness could intersect with race and class. It is about “make gay normal,” and it can involve cutting anyone out who seems to contradict that message, or cutting out parts of their story.
Alvarez, and most, choose, or are forced, to fall back on the most accepted way of explaining things. There is no space to explain how racism and class affected Tenório. It is also much easier to “rely on the psychological discourse…and an assumed liberalism of a San Francisco-based court” than to “establish the ‘normalcy’ of homosexuality, or attempt to establish why this characteristic ‘out not be changed’” (89.) In the legal system, each person is forced to fight for themselves or the client they represent (I guess except in a class action law suit), and that means that the most entrenched cultural assumptions (e.g. that homosexuality SHOULD be changed, if it can be) will stay untouched.
On the last note, I saw a link on racialicious to a CNN article involving a man from Indonesia who is seeking asylum in the U.S. because of persecution related to his sexual orientation.