Two same-sex married couples are currently fighting for the U.S. State Department to recognize their children born abroad as U.S. citizens.
In both cases, the couples are legally married U.S. citizens, but their children were born in other countries. The first couple, Derek Mize and Jonathan Gregg, married in New York in 2015 and had their daughter in England in 2018. The second couple, Roee and Adiel Kiviti, married in California in 2013 and had their daughter in Canada in 2019.
Under the Immigration and Nationality Act, the children of married U.S. citizens born abroad are automatically given U.S. citizenship at birth, as long as one of their parents has lived in the U.S. at some point.
But in practice, this policy often only applies to straight married couples. With same-sex married couples, the State Department considers their children “born out of wedlock” on the basis that only one of the parents is biologically related to the child. In essence, they treat the marriage as if it wasn’t real.
Children classified as “born out of wedlock” face much stricter requirements to gain U.S. citizenship. Their biological parent must meet extra criteria, such as living in the U.S. for five years.
“As U.S. citizens we never conceived that our child would face discrimination from our own government and be denied her rightful citizenship,” Mize said.
Lambda Legal is now arguing that the State Department’s policy is unconstitutional.
“The U.S. Constitution mandates that same-sex couples and their children be afforded equal dignity and the full constellation of benefits tied to marriage,” Omar Gonzalez-Pagan, Senior Attorney for Lambda Legal, said in a press release. “Here, though the Immigration and Nationality Act recognizes as U.S. citizens the children born abroad to U.S. married couples, the Department of State refuses to recognize as U.S. citizens such children if their parents are of the same sex.”
Karen Loewy, Senior Counsel for Lambda Legal, added: “The State Department cannot continue to treat LGBT families like second-class citizens and consign their children to citizenship limbo.”
This week, Lambda Legal filed motions in federal district courts in Maryland and Georgia, requesting the court to force the State Department to recognize both couples’ children as citizens.
As Aaron C. Morris, Executive Director at Immigration Equality, said, “We will keep fighting for these little girls and their families for as long as it takes.”
