A gay couple in Georgia has filed a lawsuit in federal court against the U.S. State Department for refusing to recognize their daughter’s American citizenship.
They argue that the department is discriminating against same-sex couples by refusing to recognize their legal marriages, and thus, stripping their children of their rightful citizenship.
Derek Mize and Jonathan Gregg, who married in New York in 2015, conceived their daughter Simone Mize-Gregg via surrogacy using an anonymous egg donor and the help a close female friend who lived in England who carried the pregnancy to term.
Simone was born in July 2018, and the couple then returned to their home in Decatur, Ga., in September 2018. Both men are listed as Simone’s fathers on her birth certificate.
Earlier this spring, the couple applied for recognition of Simone’s citizenship with the U.S. consulate in London. But once embassy staff realized both parents were men, they began asking invasive questions about how Simone was conceived and who was the biological parent.
While Mize is an American citizen born and raised in Mississippi, Gregg, the biological father was born in London to a U.S. citizen mother and a British father and raised in London with dual citizenship.
Further complicating the situation is that Gregg had not lived in the United State for more than five years prior to Simone’s birth. As a result, the couple had their application rejected.
Because only one of Simone’s fathers has a biological connection to her, the State Department is disregarding their marriage and treating Simone as though she was born out of wedlock — a classification that carries more stringent requirements to be met before her citizenship can be recognized.
“Becoming Simone’s fathers has been the greatest privilege of our lives. Her beautiful voice, her hugs, her toddling around the house — these are daily blessings in our home. We are filing this litigation today because, as her parents, we have a duty to protect our daughter.”
In the lawsuit, filed by Immigration Equality and Lambda Legal on behalf of the Mize-Gregg family, lawyers for the couple argue that the State Department’s policy violates their clients’ constitutional rights to equal protection and due process by treating their marriage differently than the marriage of a similarly situated heterosexual couple.
Under the Immigration and Nationality Act, children of married U.S. citizens born abroad are considered U.S. citizens, so long as one of their parents has lived in the United States at some point.
Earlier this year, a federal judge ruled that the State Department erred when it refused to acknowledge the citizenship of one of a bi-national gay couple’s twin sons based on the premise that the American partner was not the child’s biological father. The Trump administration has since filed an appeal of that decision.
Yet despite legal precedent set by that case, lawyers for the Mize-Gregg family argue the State Department arbitrarily and routinely refuses to recognize the citizenship of the children of same-sex couples.
“The State Department’s policy is not only cruel, it is unconstitutional. The government refuses to recognize Jonathan and Derek’s marriage and all of Simone’s rights as a U.S. citizen,” Aaron C. Morris, the executive director of Immigration Equality and one of the couple’s attorneys, said in a statement. “The fight for marriage equality is not over, and we will not stand down until the State Department changes its unlawful policy.”
As the case goes through the regular legal process, Lambda Legal and Immigration Equality have launched a joint petition to apply external political pressure on the State Department in the hope that it will change its policies regarding the treatment of same-sex couples.
“Simone was born to two dads, who lovingly and intentionally brought her into the world, and their family is entitled to equal respect from the federal government,” Karen Loewy, senior counsel for Lambda Legal, said in a statement. “The Supreme Court has been clear that married same-sex couples cannot be denied the same protections that different-sex couples receive, and that includes the right to be recognized as their children’s parents regardless of who has a biological connection to the child.
“The State Department has no business refusing to recognize Simone as an American citizen just like her parents,” Loewy continued. “We will not allow this State Department to treat LGBT families like second-class citizens.”