Reading Room Document

Authority of the Surgeon General to Direct the Public Health Service Not to Certify Arriving Homosexual Aliens as Possessing a "Mental Defect or Disease" Solely Because of Their Homosexuality

This document discusses the legal authority of the Surgeon General to direct the Public Health Service (PHS) medical officers not to certify arriving homosexual aliens as possessing a ‘mental defect or disease” solely because of their homosexuality. The Surgeon General's memorandum declared that “homosexuality per se will no longer be considered a ‘mental disease or defect,” and that “the determination of homosexuality is not made through a medical diagnostic procedure.” The conclusion reached in the document is that Congress clearly intended that homosexuality be included in the statutory phrase “mental defect or disease,” and the Surgeon General has no authority to determine that homosexuality is not a “‘mental defect or disease” for purposes of applying the Act. The document also presents questions regarding the amenability of homosexuality to diagnosis and the administrative consequences of the Surgeon General's memorandum for the enforcement of the Act. It recommends that the memorandum, its consequences for the INS, and any resulting enforcement policy be brought to the attention of Congress.

December 10, 1979