Judge issues pro-LGBT ruling in citizenship dispute

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Jonathan Gregg, Simone Mize-Gregg, and Derek Mize.

A federal judge in Atlanta last month ordered the U.S. State Department to recognize the U.S. citizenship by birth of Simone Mize-Gregg, the two-year-old daughter of a married same-sex couple, who was born in England.

In a 56-page opinion issued Aug. 27, U.S. District Judge Michael L. Brown of the Northern District of Georgia also directed the State Department to issue Simone a U.S. passport, as requested by her parents.

Simone is the daughter of Derek Mize and Jonathan Gregg. The couple had their daughter via surrogacy in England in 2018, using Gregg’s sperm. The family currently resides in Decatur, Georgia.

Both fathers are listed on Simone’s birth certificate. But in April 2019, when they applied for recognition of Simone’s U.S. citizenship, the U.S. consulate in London rejected their application. Because only Gregg had a biological connection to Simone, the State Department disregarded the couple’s marriage and treated Simone as though she was born out of wedlock. For children born out of wedlock, the biological parent had to have lived in America for five years for the child to receive birthright U.S. citizenship. Gregg hadn’t lived in America for five years prior to Simone’s birth. Thus, the State Department insisted on treating Simone as an immigrantaccording to court papers.

For their part, Mize and Gregg maintained Simone wasn’t born out of wedlock, since they were married when their daughter was born. Thus, the five-year requirement for Gregg to have lived in the U.S. wasn’t applicable.

In July 2019, Mize and Gregg filed suit against the State Department, arguing that the agency unlawfully denied Simone numerous rights, including the right to permanently reside in the United States, the right to a passport, the protection of the United States government, and the right to run for political office. The couple named Secretary of State Mike Pompeo as a defendant.

Mize and Gregg alleged that the federal Immigration and Nationality Act states that children of married U.S. citizens born abroad are U.S. citizens from birth so long as one of their parents has lived in the U.S. at some point. However, the State Department routinely denies that right to same-sex couples and their marital children. While different-sex couples are automatically presumed to both be parents of their children, same-sex couples are subjected to invasive questioning about how they brought their child into their family. 

In his opinion, Brown rejected the State Department’s position that “two married men can never have a child abroad that [the State Department] considers having been born in wedlock.” Brown declared that it’s unnecessary for “children to share a biological relationship with both [U.S.] citizen parents in order for those children to acquire [U.S.] citizenship at birth.” 

Mize and Gregg expressed gratitude for Brown’s ruling. “We are so relieved that the court has recognized our daughter, Simone, as the U.S. citizen she has been since the day she was born,” Mize stated, in a press release. “When we brought Simone into this world — as married, same-sex parents — we never anticipated our own government would disrespect our family and refuse to recognize our daughter as a U.S. citizen. As a result of the State Department’s discriminatory actions, we have undertaken a long journey to have our daughter recognized as a U.S. citizen. But today, that journey is complete, and we are overcome with gratitude — for our lawyers and for [Brown] — for recognizing us as a family that is simply trying to give our daughter the best possible start, which all children deserve.”

The family was represented by Lambda Legal, Immigration Equality, and the law firm of Morgan, Lewis & Bockius, based in Philadelphia. 

“[This] court decision is a resounding victory for LGBTQ families,” said Omar Gonzalez-Pagan, senior counsel at Lambda Legal. “The court has declared Baby Simone to be a U.S. citizen since birth and ordered the State Department to issue her a U.S. passport. We are very pleased the court found that the agency’s policy was irreconcilable with the law and our Constitution’s guarantee to equality — because it treated the children of married, same-sex parents differently from the children of other married parents.”

Aaron C. Morris, executive director of Immigration Equality, echoed those sentiments. “We celebrate the court’s decision, which acknowledges what has been true since the day she was born,” Morris said, in a press release. “Simone Mize-Gregg is a citizen of the United States. [The] decision in Georgia reaffirms what every other federal court who has heard this issue has held: family means more than biology alone. The State Department should change its discriminatory and unconstitutional policy immediately before it hurts another family.”

Attorneys for Pompeo couldn’t be reached for comment.