Gus Kenworthy
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State Dept. Ends Discrimination Against Children of Same-Sex Couples

The Kiviti family

The U.S. State Department is ending a policy that denied citizenship to the children of many same-sex couples.

During Donald Trump’s administration, the department had been sued several times over the policy, which said that children born abroad to married same-sex couples in which one spouse is a U.S. citizen would be recognized as citizens at birth only if they had a genetic relationship to the citizen parent. This denied citizenship to many children born through assisted reproductive technology and treated same-sex couples differently from opposite-sex ones, who did not have to prove a biological relationship.

Now the State Department will recognize the birthright citizenship of children with “a genetic or gestational tie to at least one of their parents” in these couples, as long as they meet the other requirements of the Immigration and Nationality Act, the department announced Tuesday.

“This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952,” says a State Department press release. It specifically affects section 301 of the INA.

Immigration Equality and Lambda Legal, which with private lawyers had represented several families suing over the previous policy, praised the department’s move.  

“This is a remarkable moment for all the LGBTQ families who fought the U.S. State Department’s unconstitutional policy,” said a statement from Immigration Equality Executive Director Aaron Morris. “It demonstrates that when our community is united and relentlessly pushes back against discrimination, we win. We have once again affirmed that it is not biology but love that makes a family.” 

“Lambda Legal applauds the State Department’s decision in response to change its policy and start recognizing the U.S. citizenship of children of married same-sex couples born abroad,” said a statement from Lambda Legal Senior Counsel Omar Gonzalez-Pagan. “The prior policy was unlawful and discriminatory, as recognized by courts in multiple cases, including two cases we won just last year. We are pleased to see this resolution, as this welcome change respects the marriages and families of same-sex couples as is required by our laws and constitution.”

In the two cases mentioned by Gonzalez-Pagan, federal courts ruled that the children of Roee and Adiel Kiviti of Maryland and Derek Mize and Jonathan Gregg of Georgia were citizens from birth, and the State Department decided not to appeal. Denying the children citizenship, one judge wrote, denied same-sex couples one of the benefits of marriage, and the Supreme Court’s marriage equality ruling requires that they have access to all those benefits. Both couples were represented by Immigration Equality and Lambda Legal.

“We are extremely pleased to see the State Department take this long-overdue step,” Mize and Gregg said in a statement released through Lambda Legal. “We are so happy that children like our daughter will no longer be denied recognition of their U.S. citizenship at birth because their parents are of the same sex or they were born through surrogacy. No family should have to go through the anguish, stress, and indignity we went through. It was deeply traumatizing to have our own government refuse to recognize our child as a U.S. citizen because we are a gay couple. We are humbled that our fight, as well those forged by other families, was able to play a part in bringing about this change, and thankful to Lambda Legal and Immigration Equality for having taken on our case.”

Immigration Equality also has represented two other couples challenging the policy. Last year a federal appeals court upheld a lower court’s ruling that both sons of Andrew and Elad Dvash-Banks were entitled to birthright citizenship. A case involving Allison Blixt and Stefania Zaccari and their daughter is still pending.

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