An Atlanta gay couple has asked a federal judge to order the U.S. State Department to recognize the U.S. citizenship of their daughter, who the government has refused to recognize as a citizen because of an outdated policy that refuses to acknowledge same-sex marriages as valid.
The couple, Derek Mize and Jonathan Gregg, were legally married in New York in 2015, but conceived their daughter, Simone, via surrogacy in England in 2018. Although both fathers are listed as parents on her birth certificate, when they applied for recognition of her U.S. citizenship, the U.S. consulate in London rejected their application.
Because only one of Simone’s fathers has a biological connection to her, the State Department is refusing to recognize their marriage and their parental rights, and treating her as if she was born “out of wedlock,” a classification that requires she meet more stringent requirements in order to have her citizenship recognized.
Under the Immigration and Nationality Act, children of married U.S. citizens born abroad are supposed to be considered U.S. citizens from birth, so long as one of their parents has lived in the United States at some point.
However, the State Department routinely denies that right to children of same-sex couples. Same-sex couples are also often subjected to invasive questioning about how the children were conceived, and their children are treated as born “out of wedlock,” and thus denied citizenship.
Mize and Gregg filed a lawsuit challenging the State Department’s policy in July 2019, arguing that it was failing to abide by its own policy when it comes to applying it to same-sex couples. On Wednesday, their lawyers, from Lambda Legal, Immigration Equality, and the law firm Morgan Lewis, argued that Simone meets the requirements to be considered a U.S. citizen from birth.
The lawyers also urged Judge Michael Lawrence Brown, a Trump appointee to the U.S. District Court for the Northern District of Georgia, to reject a motion from the Trump administration asking that the case be dismissed because Simone has been granted legal permanent residency following a hearing in May.
“It’s difficult to hear the government arguments about our daughter as though the concrete injuries we have endured as a family and continue to endure do not matter,” Mize and Gregg said in a statement.
“The government wants to dismiss our case and set up our daughter for a lifetime of unfair treatment. Of course, we will do everything we can to prevent that, and keep fighting on our daughter’s behalf. We pray every day the court will do the right thing for Simone.”
This week’s arguments in the Mize-Gregg family’s case come on the heels of a federal judge in Maryland ruling in favor of another same-sex married couple, Roee and Adiel Kiviti, who were contesting the State Department’s refusal to recognize the citizenship of their daughter Kessem.
In that case, Judge Theodore Chuang, an Obama appointee, ordered the State Department to issue Kessem Kiviti a passport and recognize her as a citizen, saying it was not clear why the State Department would subject same-sex couples and their children to “disparate treatment,” at least in comparison to opposite-sex married couples.
The Mize-Gregg family’s lawyers expressed optimism that their arguments that the State Department recognize Simone’s citizenship were well-grounded and would ultimately be accepted by Brown.
“As the court recognized in today’s arguments, the Department of State’s treatment of married same-sex couples, more generally, and of Derek, Jonny, and their daughter Simone, more specifically, is vexing,” Omar Gonzalez-Pagan, a senior attorney with Lambda Legal, said in a statement.
“No family should have to face the fear and uncertainty of having their child’s citizenship status be in limbo. Supreme Court case law has made clear that the State Department cannot treat married same-sex couples and their children as second-class citizens. The Department of State’s actions in this case are unmoored from the law and the constitution.”
“The State Department’s position that children born during the course of a marriage are actually born ‘out of wedlock’ is absurd, in stark contrast to statutory law, and unconstitutional,” Aaron C. Morris, the executive director of Immigration Equality, said in a statement. “The State Department should change its discriminatory policy immediately. And, until it does, we will continue to fight for the dignity and protection of children like Simone.”
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