Recently, the U.S. has recognized more specific obligations to protect human rights irrespective of the person’s sex, sexual orientation, or sexual identity. International LGBT LL.M. students can now point to more specific protections under U.S. law.
General Human Rights of International LGBT Students Protected by International & U.S. Law
First, all LGBT international LL.M. students in the U.S. are entitled to protections under general international human rights law.
Second, all LGBT international students in the U.S. are entitled to certain protections under US Constitution, Federal Statutes, State Constitutions, State Statutes, and Local Ordinances.
The primary categories of rights protections under this law follow:
1. Non-discrimination based on sexual orientation or gender identity.
2. Equal protection under the law and general equality rights.
3. Freedom of expression & association.
4. Right to privacy.
5. Protection from hate crimes, harassment, bullying.
6. Right to marry or form civil unions or domestic partnerships
7. Right to have dependents recognized (same-sex partners, dependents)
8. All rights that international non-LGBT students are entitled to.
9. All rights that non-international students are entitled to (with some distinctions).
Some International Instruments That Protect or Incorporate Protections for International LGBT Students in the U.S.
o Charter of the United Nations
o Universal Declaration of Human Rights
o United Nations International Covenant on Civil & Political Rights
o Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2006)
President Barack Obama has recognized international human rights law in his steps to protect LGBT persons, including repealing Don’t Ask, Don’t Tell (gays to serve openly in the military), promoting marriage equality, appointing LGBT persons to high level positions, and providing tax and visa benefits to same sex couples at the same level as for opposite sex couples.
Secretary of State Hillary Clinton invoked international human rights law protections for LGBT persons in declaring that “human rights are gay rights, and gay rights are human rights, once and for all.” This has been reaffirmed by U.S. Secretary of State John Kerry.
Some Domestic U.S. Laws that Protect International LGBT LL.M. Students
o U.S. Constitution
o U.S. Federal Statutes
o State Constitutions
o State Statutes
o Local Ordinances
U.S. Constitution - General.
The U.S. Constitution guarantees all people, including LGBT people, “equal protection of the laws”. LGBT students are protected in areas of freedom of speech and religion, privacy rights, and due process rights. The U.S. Constitution protects consensual same-sex private sexual conduct.
U.S. Constitution & Freedom of Expression & Association.
The Constitution’s 1st Amendment protects free expression. The government (and public schools) may not improperly interfere with your 1st Amendment right to express yourself or to receive communications from others. State constitutions have similar speech protections.
Your expression is protected on or off campus. You may speak about “LGBT issues”, and you have the right to receive information from other sources. You have the right to remain silent regarding sexual orientation or gender, or the right to speak if you wish.
A school (or the government) can restrict your speech only if your speech: (a) is verbally abusive (like harassment); (b) promotes illegal drug use or that is lewd or profane; (c) could substantially disrupt the school’s operation; or (d) interferes with the rights of others.
Under law, freedom of association & expression go hand in hand. Students have the right to speak, communicate with, or associate with each other, or with whomever else they wish.
U.S. Constitution & Equality - General U.S. visa rules for LGBT LL.M. students.
As of 2013, under President Obama, U.S. embassies and consulates adjudicate same-sex visa applications the same as opposite-sex applications, including for international students, their same-sex spouses, and their children.
U.S. Constitution & the Right to Marry (including international students)
In June 2013, the U.S. Supreme Court in U.S. v. Windsor recognized same-sex marriage for federal law purposes. This has many implications for international students in the U.S.
U.S. Federal Statutes
Federal statutes banning harassment, bullying, and other violence include:
· Federal Equal Access Act (EAA). (when public schools provide resources or access to non-LGBT groups, they must provide the same to LGBT groups)
· 1964 Civil Rights Act, Title VII. (bans discrimination based on sex, broadly construed).
· Education Amendments of 1972, Title IX. (bans sex discrimination in federally supported education programs, including no sexual harassment, discrimination for failing to conform to gender stereotypes, or discrimination against inter-sexed, transsexual, transgender or androgynous individuals.)
· Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act. (when bodily harm inflicted due to a
person’s actual or perceived gender, sexual orientation, or gender identity).
Freedom to Work – Federal Law
U.S. law limits the ability of international students to work in the U.S. while they are enrolled in school and after they graduate. Once an LGBT international student begins work, they are protected by federal anti-discrimination laws. Some states have similar laws.
All state constitutions ban discrimination, though each state provides a different level of protection, but that protection must be consistent with the U.S. Constitution.
State & local law banning harassment, bullying, and other violence (selected).
Many states & DC have laws addressing violence based on sexual orientation and sexual identity.
State law re same-sex relationships.
Marriage rights are currently determined by each state. Some permit same-sex marriage, and some permit same-sex civil unions or domestic partnerships. International LGBT students are entitled to the same rights at the same levels.
Public schools versus private schools. Rights and protections at schools funded by the federal government may be different
than those at privately funded ones. Private schools that do not receive government funding may not afford as wide a range of protections as public schools. When choosing an LL.M. program in the U.S., LGBT international applicants might consider the
distinction between protections afforded by public versus private U.S. law schools.