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Defying State Dept., Court Affirms Gay Couple's Son Is U.S. Citizen

Andrew and Elad Dvash-Banks

A federal appeals court has upheld a ruling that the son of a binational married same-sex couple is entitled to birthright citizenship, which the State Department has tried to deny to the child.

The U.S. Court of Appeals for the Ninth Circuit issued its decision Friday in the case of Los Angeles residents Andrew and Elad Dvash-Banks, affirming the ruling handed down by a federal district court in February 2019, according to Immigration Equality, which is representing the couple along with private attorneys. The State Department filed an appeal in May 2019.

Andrew and Elad, a U.S. citizen and an Israeli citizen respectively, have twin sons, one conceived with Andrew’s sperm and one with Elad’s, using eggs from the same donor, who then carried both children and gave birth to them moments apart in Canada. Their children also qualify for U.S. citizenship, but the State Department had ruled that Aiden, the child conceived with Andrew’s sperm, is a U.S. citizen, but his brother, Ethan, conceived with Elad’s sperm, is not. Because Ethan is not biologically related to a U.S. citizen, the State Department considered him born “out of wedlock.” The department does not usually apply that definition to children of opposite-sex couples, whether or not there is a biological relationship.

The Dvash-Bankses learned of the State Department’s stance when they applied for passports for the boys, who are now 3 years old. They filed suit over the issue in 2018, as several other couples have done. Two other couples won rulings at the trial court level this summer; every court that has considered the issue has found the department’s actions discriminatory and ruled that the children are citizens from birth.

In the Dvash-Bankses’ case, a three-judge panel of the Ninth Circuit, which covers the western U.S., filed a brief opinion affirming the trial court’s ruling. “After years of the federal government denying Andrew and Elad’s rights as a married couple, the Ninth Circuit has unequivocally ruled in the family’s favor,” Aaron C. Morris, executive director of Immigration Equality, said in a press release. “No longer will these parents have to worry that their twin sons will be treated as if they were born out of wedlock simply because they have two fathers. This decision demonstrates yet again that it is far past time for the State Department to change its discriminatory policy.”

“We are overjoyed and gratified by today’s decision that our twin sons should be treated the same as the children of all other marriages, and we hope this decision will help other LGBTQ families secure the equal rights they deserve,” Andrew and Elad Dvash-Banks said in the release.

The State Department is reviewing the decision, a spokesperson told media outlets, signaling that further appeal may be possible. The next step would be the U.S. Supreme Court. The department is led by Secretary of State Mike Pompeo, a former member of Congress with a long and strong anti-LGBTQ+ record.

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