The Trump Assault on Same-Sex Parents

Citizenship denied to children born to same-sex married couples

James Finn
· 6 min read
Derek Mize and Jonathan Gregg are suing the US State Department for their daughter’s citizenship. Image Credit: Immigration Equality, used with permission

The Trump administration’s war on LGBTQ is targeting vulnerable families and babies

The administration’s hostility to LGBTQ equality is no secret. Whether they’re refusing to allow transgender people to serve in the military, making rules to allow healthcare providers to turn away LGBT people, or subverting gay marriage equality, Trump and crew continuously cement the third-class civil status of queer folk.

The war on families is especially outrageous

From allowing state-funded adoption agencies to exclude same-sex parents, to rewriting rules to allow doctors to refuse to treat children of same-sex parents, LGBTQ families find themselves in the cross hairs of bigotry.

Families forced to sue for their children’s citizenship

The US State Department has put policies in place that invalidate the equality of same-sex marriage. They treat same-sex couples differently from opposite-sex couples, often refusing to recognize the citizenship of children born abroad to US citizens.

In the latest of a string of cases, a gay couple living in Georgia recently filed a lawsuit, complaining that the U.S. State Department is refusing to recognize their daughter’s American citizenship.

The fathers, Derek Mize and Jonathan Gregg, are both US citizens by birth. They met in New York City in 2014, married in 2015, and moved to Georgia in 2017. Their daughter Simone was born in England in July 2018 via a surrogate who is Jonathan’s close friend. He provided the sperm.

During the birth, Jonathan cut Simone’s umbilical cord while Derek held her. The men returned to their home in Georgia in September, with their daughter. In March, Derek applied for a social security number for Simone. The Social Security Administration informed him that because she had been born abroad he needed to present proof of her citizenship. That’s when all the trouble started.

The State Department refused to issue a passport for Simone, claiming she is not a US citizen

Jonathan and Derek returned to London, where Simone was born, and applied for her passport at the US embassy. They presented their marriage certificate and her birth certificate, which listed each of them as a parent, as is normal in surrogacy situations.

Upon noticing that both parents were men, the embassy staff asked a series of intrusive questions about surrogacy, then after a three-hour wait, refused to issue a passport, claiming that Simone is not a citizen of the United States.

The State Department claims that because only Jonathan has a biological relationship to Simone, that they are treating her as if she was born outside of marriage, triggering special conditions for citizenship. They don’t recognize Derek as her father, even though he’s listed on the birth certificate, and even though he is legally her father for any other purpose.

Jonathan, who is a dual, US/UK citizen, had not lived in the US for a full five years before Simone’s birth, so according to special State Department rules about unwed parents, Simone is not a citizen.

US District Judge John F. Walter in a prior, similar case has already ruled against the State Department, writing that,

The Court concludes that, under controlling Ninth Circuit authority, Section 301 does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents …

The judge was referring to the 2005 9th Circuit decision Solis Espinoza v. Gonzalez, which holds that legal parenthood, not a genetic or biological relationship, is the sole basis for a child’s citizenship.

The State Department has appealed that decision and is moving to deny citizenship to children in a series of similar cases.

Zaccari-Blixt family. Credit: Immigration Equality, with permission

Allison and Stefania Zaccari-Blixt are legally married with two sons. Allison is a US citizen. Stefania is Italian.

The State Department refuses to recognize their marriage, denying that Lucas, who was carried by Stefania, is Allison’s son. In fact, in denying that Lucas was a citizen, the State Department explicitly advised the couple that it was using a policy they apply solely to unwed mothers. The couple are suing.

Andrew and Elad Dvash-Banks with twin sons Ethan and Aiden. Image credit: Immigration Equality, used with permission

Andrew and Elad Dvash-Banks, another legally married mixed-citizen couple, find themselves in a similar position. They have twin sons, Ethan and Aiden, born via surrogacy, but the State Department recognizes only Aiden as a US citizen, again relying on policies explicitly written to apply to unwed parents.

Andrew and Elad have won their initial court case, and both their sons now hold passports, but the State Department is appealing, trying to strip Ethan of his passport and recognition of his citizenship.

The State Department is illegally discriminating

Same-sex couples who have children by surrogacy are never asked for DNA tests or any other information to determine the biological relationship of children to parents. A valid birth certificate is the only requirement.

During their three-hour wait at the embassy, Derek and Jonathan say they watched about 20 male-female couples come in, present birth and marriage certificates and walk out with passports for their children. None of them were asked details about conception or biological relationship.

Existing case law goes against State Department discrimination in this case. They would actually be obeying the law if they issued passports to all the children in these examples. By appealing existing rulings, the State Department is actively working to create new case law, and to deny equality, treating same-sex couples as legally distinct from and inferior to male/female couples.

The State Department is acting immorally

Baby Simone, who has British citizenship through Jonathan, returned to Georgia last April on a six-month tourist visa. But it expires soon, leaving her without legal status, which Derek says is a terrifying prospect. The men have built their lives in the US, and don’t have any employment prospects in the UK. Unless they win their case, their family may be torn apart.

Denying citizenship to babies born to legally married couples serves no government interest. Nor is any societal interest at stake. No security threats loom if babies of legally married US citizen couples claim their birthrights. No pamper-clad terrorists threaten the heartland. The State Department’s actions serve no purpose other than to separate children from their parents, immoral by any reasonable standard.

The State Department has no comment

Immigration Equality, one of the nation’s leading LGBTQ immigrant rights organizations, is representing these families and others in court as they pursue justice and basic fairness. Representatives have reached out to the State Department asking for their rationale in denying citizenship to children of same-sex couples in situations were they routinely issue passports to children with male/female parents. The State Department has had no comment. White House officials refer questions to the State department.

Nobody is talking to the parents. Nobody is explaining why they can’t live in the United States with their children, who for every other official purpose are their undisputed legal children.

The Trump Administration silence speaks volumes

This is one just more example of the Trump Administration’s naked homophobia. Of their blatant disregard for equality and the rule of law. Of their resistance to same-sex marriage despite its equality under the law. This is one more example of the Trump administration kowtowing to its Evangelical Christian base, whose support Trump must have to be elected again in 2020.

Ripping families apart is not a Christian value or an American one. It’s time for the Trump State Department to drop its legal appeals and recognize the full equality of same-sex marriage. It’s time to stop treating legally married same-sex couples differently from other couples.

It’s time to do the right thing.

James Finn - The Blog

Collected Writings. Stories and ramblings from a long-time LGBTQ thinker and activist.

James Finn

Written by

Writer. Runner. Marine. Airman. Former LGBTQ and HIV activist. Former ActUpNY and Queer Nation. Polyglot. Middle-aged, uppity faggot.

James Finn - The Blog

Collected Writings. Stories and ramblings from a long-time LGBTQ thinker and activist.

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