U.S. revises policy that denied citizenship to children of gay and lesbian couples

A critical bar to gay and lesbian couples being fully enfranchized as parents has been removed by the U.S. State Department. The U.S. has ended a policy that denied U.S. citizenship to some children born abroad to gay and lesbian Americans if they didn’t have a biological tie to one parent.

A press statement titled “U.S. Citizenship Transmission and Assisted Reproductive Technology” from State Department spokesperson Ned Price, who is himself openly gay, detailed the new policy and why the old policy, in place since 1952, had been changed. 

“Recognizing the advances in assisted reproductive technology (ART), the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act (INA), which establishes the requirements for acquisition of U.S. citizenship at birth,” the statement explains.

Many lesbian and gay couples either adopt abroad or engage a surrogate abroad. In addition, some couples are of mixed nationalities. Addressing that increasingly common reality, the new policy asserts that “Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements.”

The press statement explains how “previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.”

The purpose of the new policy is to make it easier for gay and lesbian parents to adopt and/or use a surrogate in building their families. 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.

According to the State Department, “this change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA.”

Requirements for children born to unmarried parents remain unchanged. Under the previous policy, a child born in the U.K. to an American woman and her British wife could be denied U.S. citizenship if the child had no biological tie to the American, even if the women were legally married in the U.S. before the child was born.

In recent years, Immigration Equality, an LGBTQ immigrant rights organization, has filed lawsuits against the State Department on behalf of same-sex married couples whose children were denied American citizenship, despite one parent being a U.S. citizen.

In a statement, Immigration Equality’s Executive Director, Aaron Morris said, “This is a remarkable moment for all the LGBTQ families who fought the U.S. State Department’s unconstitutional policy.”

Morris said, “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.”

According to Immigration Equality, Allison Blixt and Stefania Zaccari had a pending lawsuit against the State Department for denying birthright citizenship to their son, Lucas Zaccari-Blixt when the new policy was announced.

Because Lucas was carried by Stefania, an Italian citizen, he was not recognized as a U.S. citizen. Immigration Equality explains that U.S. birthright citizenship — a constitutional mandate — does not depend on a biological relationship between the child and the U.S. citizen parent. Birthright citizenship relies on whether the child is born of a married couple, one of whom is a U.S. citizen. But the State Department was not recognizing same-sex couples as married.

“We are relieved and thankful that our fight for our family to be recognized by the government has finally ended,” said Allison Blixt, a plaintiff in the case.

Blixt said, “We knew we would succeed eventually, as trailblazers before us fought and won marriage equality. Our marriage is finally recognized and treated equally. Lucas, who made me a mother, will finally be treated as my son and recognized as American, as his brother always has been.”

One of the main issues argued by plaintiffs against the State Department’s prior policy is that it also failed to recognize the validity of the marriages between same-sex couples. These couples’ children were categorized as having been born out of wedlock–the policy treated gay and lesbian parents as unmarried.

This was at issue in another case handled by Immigration Equality in 2019. Derek Mize and Jonathan Gregg, both U.S. citizens, fought to bring their daughter, Simone, home to the U.S. Simone was born in July 2018 via a gestational surrogate in the U.K. using one father’s sperm and an anonymously donated egg. Under the prior policy, the State Department denied Simone’s passport application, arguing that she was, like children born out of wedlock, not eligible for automatic birthright citizenship and subject to additional steps for naturalization.

As Immigration Equality explains, “This interpretation was at odds with the clear intent of Congress in passing the Immigration and Nationality Act (INA), and it deprives same-sex married couples of the fundamental rights and attributes of marriage.”

Another married couple’s case exemplifies how convoluted the prior policy was. U.S.-citizen Andrew Dvash-Banks and his husband Elad Dvash-Banks had to fight for citizenship for one of their children.

One of the couple’s fraternal twin sons was recognized as a U.S. citizen and one was not. Because one son was conceived with the sperm of one father and the other son with the sperm of the other father, one of these children was treated by the U.S. government as a U.S. citizen while the other was forced to enter the U.S. on a tourist visa.

The State Department looked solely at biological relationships to determine whether the boys would be recognized as U.S. citizens at birth. In 2018, Immigration Equality filed a case against the U.S. State Department challenging the discriminatory policy.

In 2019, a federal judge ruled that Ethan Dvash-Banks has been a U.S. citizen since birth. The Trump U.S. State Department appealed that decision, insisting a married U.S. citizen must have a biological connection to their child in order to pass on birthright citizenship.

Immigration Equality said, “All couples won recognition of the U.S. citizenship of their child through the courts, except for Allison and Stefania, whose case is still pending.”