This Pride Month feels different than in years past. After decades where it felt like the moral arc of the universe was bending towards Justice and tolerance, gay and trans rights--and gay and trans people--are under assault by right-leaning politicians, media personalities, and members of the community. Hard-won progress now seems under threat. Republicans are using a time-tested strategy of falsely imputing power to a vulnerable community (for example, the power to "groom" children) and then attacking that community based on the false narrative. It reminds me very much of blood libels, where Jews were falsely accused of murdering Christian children, and this became an excuse for violence against the Jewish community.

But while sexual minorities are under threat, particularly at the state and local levels, LGBT asylum cases continue to be approved by the federal Immigration Courts. What explains this discontinuity? And should we feel hopeful for society that LGBT asylum seekers are still being accepted, or fearful that the retrenchment of rights will spread to the asylum system?

To answer these questions, we first need to know about the success rate for LGBT asylum cases. But here, we are at a disadvantage because we lack data. The government does not separately track asylum for sexual minorities and so there is no easy way to know how such applicants are faring at the Asylum Office or Immigration Court. That said, we do know the state of the law. While the Trump Administration did not directly implement policies targeting LGBT asylum seekers, they did make it more difficult to win asylum for applicants who feared harm from non-state actors. This change was (mostly) motivated by a desire to block victims of domestic violence and gang violence, but it also created challenges for certain LGBT cases, since the persecutors in such cases are often members of the community rather than the home government. Fortunately, this change was never fully implemented (thanks to various court cases), and when President Biden came into office, it was reversed. And so, in short, the law has not changed in a way that disfavors LGBT cases.

A more difficult question is whether the anti-gay hysteria that we see in the news is affecting decision-makers in the asylum system. With no data, we cannot know for sure, but based on my experience and the experience of attorneys I talk to, there is no evidence that anti-LGBT sentiments are making it more difficult to win asylum in the United States. Even if some individual decision-makers are being influenced by anti-LGBT attitudes (and we have no evidence one way or the other), there is no reason to believe that this is a general trend, and as far as I can tell, LGBT asylum cases tend to be quite strong (sadly, this is because country conditions around the world tend to be so bad).

Another question is whether the worsening attitudes towards LGBT people in general will eventually affect asylum eligibility for sexual minorities. In order to win asylum in the United States, an applicant must demonstrate that he faces persecution on account of his race, religion, nationality, political opinion or particular social group. That is the law, and in precedential decisions dating back more than 30 years, "sexual orientation" has been established as a particular social group for purposes of asylum. I doubt this situation will change any time soon, since it would likely require a change in the law--either Congress would have to vote to revise the Immigration and Nationality Act or federal courts would need to reverse 30 years of precedent. So the law related to LGBT asylum seems secure.

On the other hand, the administration in office has significant power to interpret the law. While I do not think a hostile administration could eliminate asylum protection for LGBT applicants, it could make things more difficult by issuing more restrictive regulations or administrative decisions (as the Trump Administration did for victims of domestic violence, for example).

Overall, though, our country's approach to LGBT asylum seekers gives me hope. Since the early 1990s, we have seen a slow but significant expansion of protections for LGBT asylum seekers and immigrants. When I first opened my own firm in late 2003, for instance, gay marriage generally did not exist and a U.S. citizen could not petition for a same-sex partner. Less than 20 years later, such cases are now routine. In the asylum context, I have found that Immigration Judges and Asylum Officers recognize that LGBT applicants face real danger, and such cases are usually granted. I do not see any realistic likelihood of that changing any time soon.

When societies advance, there is inevitably a backlash, and I think that is what we are seeing now in the area of LGBT rights. But it seems to me that our nation has fundamentally changed, and that the forces of regression underestimate that progress. Of course, nothing is guaranteed and we must keep working to protect our gains and to keep advancing LGBT rights. But every time our country grants asylum to an LGBT applicant, it re-confirms that we are moving in the right direction, and it serves as a tangible reminder of how far we have come.

Originally posted on the Asylumist: