Why The Diplomatic Visa Policy Liberals Are Bashing Is Actually A Win For Gay People

Why The Diplomatic Visa Policy Liberals Are Bashing Is Actually A Win For Gay People

Trump's policy change actually supports gay American diplomats, promotes gay rights abroad, and treats same-sex and opposite-sex couples equally.
Joshua Herr
By

The Trump administration has discontinued an Obama-era policy that granted diplomatic visas to the domestic partners of foreign diplomats to the United States, regardless of whether they are same-sex or opposite-sex. Instead, now that same-sex marriage is legal in the United States, the State Department will require those diplomats to marry in order for their partners to be eligible for diplomatic visas.

Democrats, LGBT rights organizations, and the news media immediately framed the decision as an attack on gay people, bandying headlines such as, “Trump Administration Will No Longer Grant Visas to Same-Sex Partners of Diplomats.” The Human Rights Campaign called it an “unconscionable, needless attack.” Senate Minority Leader Chuck Schumer called the change “cruel and discriminatory.”

These attacks misrepresent the State Department’s new policy. Far from discriminating against gay people, it is actually designed to benefit gay American diplomats abroad and to promote gay rights across the globe.

Diplomatic visas clothe the bearer in immense privileges. Once in the United States, diplomatic visa holders hold diplomatic immunity. Depending on the position, they are immune from arrest or detention, they generally cannot be sued or criminally prosecuted, they cannot be searched, and they are exempt from customs duties and most taxes.

The policy at issue was created in 2009, when then-Secretary of State Hillary Clinton directed the State Department to issue diplomatic visas to same-sex domestic partners of foreign diplomats in the United States and to formally ask foreign countries to issue reciprocal visas for same-sex domestic partners of American diplomats. After the Supreme Court’s Obergefell decision in 2015, Secretary of State John Kerry announced that domestic partner benefits for American diplomats would be phased out.

Under the Trump administration, promotion of LGBT rights around the world has remained one of the State Department’s priorities. Despite eliminating dozens of other programs, it kept the “gay rights envoy” position, and secretaries Rex Tillerson and Mike Pompeo each recognized LGBT Pride Month. Ambassador Nikki Haley condemned discrimination on the basis of sexual orientation and decried the kidnapping, torture, and murder of gay men in Chechnya.

Unfortunately for American foreign service officers, while the United States grants visas for same-sex spouses of foreign diplomats, only a small number of countries extend the reciprocal diplomatic privileges and immunities to American diplomats’ same-sex spouses or partners. The president of Gays and Lesbians in Foreign Affairs Agencies (GLIFAA) explained in 2014: “The problem is not here – it’s in the foreign governments. … we find retrenchment in some of the rest of the world that is making it harder for an LGBT family in the Foreign Service to serve successfully overseas.”

This week’s policy shift is actually an exercise in diplomatic “soft power” in favor of gay rights. By refusing to grant diplomatic visas to same-sex partners of foreign diplomats, the United States communicates to their home countries that they should allow their gay diplomats to marry. If they don’t, they will need to ask for exceptions to the rule or apply for inferior, non-diplomatic visas, which reflect the inferior legal status they grant to their own diplomats.

Thus, this policy forces those countries to face the awkward consequences of their anti-gay policies. It also gives the State Department leverage it can use to secure visas for the same-sex spouses of its own diplomats.

The new policy is not discriminatory toward gay diplomats. Instead, it establishes equality by treating same-sex and opposite-sex couples the same. The State Department formally announced that same-sex partners of those diplomats will be granted diplomatic visas, so long as they “legally marry in a jurisdiction that recognizes same-sex marriages.”

Neither does this policy put gay diplomats at risk in their home countries.  In the event gay diplomats fear discrimination for marrying their same-sex partner, the State Department has promised that it is “committed to working with affected individuals to find an appropriate resolution.” As a practical matter, that scenario is hypothetical at best, because applications for domestic partner visas have always required the sending government or organization to provide a note in support of the application. Countries that would punish their diplomats for marrying a same-sex partner overseas would not provide such a note in the first place.

In summary, this policy change actually supports gay American diplomats, promotes gay rights abroad, and treats same-sex and opposite-sex couples equally. So, why are people calling it an anti-gay attack?

The American LGBT movement is experiencing an identity crisis. After the Supreme Court ruled in favor of marriage equality in 2015, many LGBT rights organizations lost their greatest political MacGuffin. It’s hard to keep a nonprofit political army funded and keep the organizational lights on when the biggest part of the crusade is won.

To replace it, some LGBT rights organizations have re-branded themselves into an “LGBT Left,” resorting to hard-left positions on issues unrelated to LGBT rights. They range from supporting sanctuary state laws to lobbying for government-run health care to championing abortion, to name a few, as though real LGBT people don’t fall on all sides of those debates.

Last month I attended the annual dinner of a major LGBT rights organization with a handful of Log Cabin Republicans. We maintain relationships with LGBT rights organizations and like to think of our presence as a reminder that equality is not a partisan issue.

At that dinner, one of the speakers urged more than 1,000 attendees to vote blue all the way down the ballot. She shouted that LGBT people’s failure to get out and vote for Democrats is to blame for Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples in 2015. The room burst into applause, apparently without a clue that Davis had been elected as a Democrat in 2014.

LGBT people still face great challenges in the United States. Gay marriage is only legal in 25 of the world’s 195 countries. In about 70 countries, gay people can still be imprisoned, tortured, or killed just for being gay or being in a same-sex relationship. But those stories don’t make the news because the LGBT left does not prioritize them.

Instead of focusing on those pressing concerns, the LGBT left has chosen to trade its noble calling for a pottage of partisan cheap shots. By misrepresenting Republican policies that would promote LGBT rights as attacks on LGBT people, the LGBT left communicates that it cares more about manufacturing outrage for the sake of political power than working toward equality.

The LGBT rights movement can and should be a nonpartisan cause. We would make great progress if Republicans and Democrats worked together on LGBT issues. But by attacking Republican officials and policies that actually promote LGBT rights, the LGBT left cuts off its nose to spite its face.

Joshua Herr is an attorney, former State Department intern for the U.S. Mission to Germany, and President of the Log Cabin Republicans of Los Angeles.

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