Gay Marriage Access For International Students: A Right?

International students in the United States who wish to marry their US partners should be aware of the legal procedures and requirements for obtaining a marriage-based green card. The process can be complex, and several factors come into play, including the student's visa status, the timing of the application, and the ability to prove that the marriage is genuine. While it is possible for international students to get married in the US, they must navigate the challenges of changing their visa status and dealing with uncertainties about their future. This process involves various forms and documentation, and it is recommended to seek guidance from an immigration attorney to ensure a smooth transition.

Characteristics of Gay Marriage for International Students

Same-sex marriage laws in the US

Same-sex marriage has been legal in all fifty states in the US since 2015, following various court rulings, state legislation, and direct popular votes. The availability of legally recognised same-sex marriage expanded from one state, Massachusetts, in 2004. States each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognise marriage as a fundamental right guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

The road to legalisation was long and challenging. In 1972, the Supreme Court of the United States declined to become involved in the Baker v. Nelson case. The issue of same-sex marriage gained prominence in 1993 when the Supreme Court of Hawaii ruled in Baehr v. Lewin that it was unconstitutional under the Constitution of Hawaii for the state to abridge marriage on the basis of sex. This led to federal and state actions to explicitly abridge marriage on the basis of sex, including the 1996 federal Defense of Marriage Act (DOMA). In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that it was unconstitutional under the Constitution of Massachusetts to abridge marriage on the basis of sex.

In 2013, the Supreme Court's ruling in United States v. Windsor required the Federal Government to treat lawfully married same-sex couples equally with lawfully married opposite-sex couples. Before this, same-sex married couples faced severe disadvantages, with their marriages not recognised for any purpose by the Federal Government.

In 2022, President Joe Biden signed the Respect for Marriage Act into law, reflecting the growing acceptance of same-sex unions. However, despite this excitement, there were concerns about the proliferation of conservative policies on gender issues at the state level. Justice Clarence Thomas suggested revisiting the legalisation of gay marriage, generating fears that more rights could be imperiled by the court's conservative majority.

Visa options for same-sex partners

For same-sex couples, there are various visa options available depending on the country of immigration and the couple's marital status. Here are some visa options for same-sex partners:

United States

Same-sex couples seeking to immigrate to the United States have several options. If the couple is already married, they may be eligible for the same immigration benefits as opposite-sex spouses, provided the marriage was performed in a jurisdiction that legally recognizes same-sex marriage. In this case, the foreign spouse may be eligible for a derivative spouse visa. Additionally, the domestic partner can sponsor their spouse for a green card, although this process can be complex and may require legal assistance.

If the couple is not yet married, a K-1 fiancé visa is an option. This visa allows the fiancé to enter the United States for 90 days, during which the couple must marry and then apply for "adjustment of status," or lawful conditional residence. The process for obtaining a K-1 visa is similar to that of heterosexual couples and includes requirements such as demonstrating that the couple has met in person within the last two years and that the sponsoring partner has sufficient income to support their fiancé.

For those in a de facto same-sex relationship, the B-2 visa is an option if they are cohabitating with a nonimmigrant F1/J1 visa holder and do not intend to work. This visa can be issued for extended periods, allowing the couple to remain together in the United States.

Other visa options for same-sex spouses in the United States include employment-based immigration visas, where the spouse can immigrate along with their spouse who is immigrating through employment. Additionally, if one spouse has been granted asylum, their spouse is also eligible for asylum status, even if they are outside the United States.

Australia

In Australia, same-sex couples have the option of applying for a partner visa, recognizing their marital status. This includes couples legally married overseas, provided they can present a valid marriage certificate. Additionally, couples in a de facto same-sex relationship can apply for a de facto visa if their relationship is considered illegal or dangerous in their home country. The processing time for partner visa applications can vary depending on various factors, including the complexity of the application and the volume of applications being processed.

Support for LGBTQ international students

For LGBTQ+ international students, studying in a foreign country can be a liberating experience, especially if they come from a country where their rights are restricted or their identities are not acknowledged. However, this can also be a challenging and stressful time, and support is crucial for these students' well-being.

Support for LGBTQ+ International Students:

On-Campus Support

Many colleges in the United States have LGBTQ+ student services and associations that provide support and resources to students. These groups can help students feel less isolated and provide a sense of community. Additionally, some campuses have LGBTQ+ resource centres where students can find information, support, and a safe space to be themselves.

Educator Support

Educators can play a vital role in supporting LGBTQ+ international students. They can do this by using inclusive language, addressing harmful comments, and amplifying LGBTQ+ voices in the classroom. It is also important for teachers to be aware of the laws and their rights so that they can legally advocate for their students.

Counselling Services

University health care services often offer counselling to help students cope with stress and anxiety. This can be especially beneficial for LGBTQ+ international students who may be navigating complex emotions and concerns related to their identity and personal safety.

Visa and Immigration Support

LGBTQ+ international students may face unique challenges when it comes to visas and immigration. Understanding the relevant laws and options can help students make informed decisions. For example, in the United States, legally married same-sex spouses can apply for the same immigration benefits as opposite-sex spouses if the marriage was performed in a country where it is legally recognised.

LGBTQ+ Organisations

There are several organisations dedicated to supporting LGBTQ+ individuals, including international students. These include Point Foundation, which provides resources and scholarship information, and CenterLink, which works on specific LGBTQ+ rights issues and provides safe spaces for the LGBTQ+ community.

Overall, supporting LGBTQ+ international students requires creating an inclusive and welcoming environment, providing resources and community, and advocating for their rights and safety.

LGBTQ resource centres at universities

The legalization of same-sex marriage varies across countries and states. In the United States, the Department of Homeland Security has stated that legally married same-sex spouses can apply for the same immigration benefits as opposite-sex spouses, as long as the marriage was performed in a state or country where it is legally recognized. This means that an international LGBTQ+ student's marriage will be recognized for immigration purposes, even if they currently reside in a state that does not recognize their marriage.

LGBTQ+ resource centers at universities play a crucial role in providing support and resources for LGBTQ+ students, fostering a sense of community, and advocating for their needs. These centers are often established in response to hostile actions and climates on campus, aiming to create a safe and inclusive environment for LGBTQ+ students.

The University of Michigan was the first university in the US to establish an LGBTQ+ center in 1971. Since then, the number of centers has grown, particularly in the late 1990s and early 2000s, following incidents such as the 1998 murder of Matthew Shepard. As of March 2019, eight US states had no institutions with an LGBTQ+ center, and nine had only one statewide. However, this trend is changing, with more universities recognizing the importance of these centers. For example, the University of Pennsylvania's LGBTQ+ center, established in 1982, was renamed after receiving a $2 million donation, and the UCLA LGBTQ+ Campus Resource Center has been serving the UCLA community for over 25 years, providing education, advocacy, and support for the LGBTQ+ community on campus.

These centers are vital in creating a network of support for LGBTQ+ students, who may face unique challenges, such as navigating the immigration process with their partners, as mentioned earlier. They also help foster a sense of community and belonging, providing a safe space for students to be themselves and connect with others.

While the existence of these centers is a step forward, there is still work to be done to ensure they are inclusive and accessible to all LGBTQ+ students. This includes addressing existing cultures of hostility, homophobia, and transphobia within universities and ensuring that the centers serve and target all members of the LGBTQ+ community, especially those from marginalized backgrounds.

LGBTQ rights in other countries

As of January 2025, same-sex marriage has been legalized in 38 countries, including the United States. The Department of Homeland Security in the US has stated that legally married same-sex spouses can apply for the same immigration benefits as opposite-sex spouses, as long as the marriage was performed in a country where it is legally recognized. This means that if an international student is married in a country where their same-sex marriage is legally recognized, they may be able to apply for immigration benefits in the US, even if their home state does not recognize their marriage.

LGBTQ rights vary greatly across the world. While some countries have made significant progress towards equality, others continue to impose harsh penalties, and even the death penalty, for consensual same-sex acts. A country's legal recognition of same-sex marriage does not always indicate broader acceptance of LGBTQ individuals, as anti-LGBTQ discrimination, bullying, and hate crimes remain prevalent issues globally.

To assess LGBTQ rights in a particular country, one can refer to resources such as Equaldex, which provides detailed information on various aspects of LGBTQ life, including same-sex marriage, adoption, military service, discrimination protections, age of consent, and blood donation restrictions. According to Equaldex's Equality Index, Australia, New Zealand, the Nordic countries, and parts of Europe rank highest in terms of LGBTQ rights and freedoms, while the Middle East and most of Africa (except South Africa) rank the lowest.

It is important for LGBTQ individuals, including international students, to be aware of the laws and cultural norms of their host country. Resources like the LGBTQ Visa/International Resources guide from UW–Madison can help students understand the LGBTQ climate in different regions and make informed decisions about studying abroad. These resources also provide support and advice for students dealing with stress and anxiety related to returning to less LGBTQ-friendly countries.

Frequently asked questions