Family Equality Council Condemns State Department Refusal of Citizenship to Children of Married, Same-Sex Couples

WASHINGTON, D.C. — Family Equality Council CEO The Rev. Stan J. Sloan issued the following statement today, in response to reports of a shift in enforcement of immigration policy by the State Department:

“In yet another attack on LGBTQ families by the Trump Administration, the State Department is refusing to recognize the citizenship rights of some children of married same-sex couples and is applying a discriminatory policy that undermines the validity of marriages of same-sex couples. As a result of this policy, children born overseas to married same-sex parents via assisted reproductive technology (such as surrogacy and in vitro fertilization) are being denied their right to U.S. birthright citizenship if the parent they have a biological connection to is not a U.S. citizen, putting the rights of these families to permanently live together in the U.S. at risk.”

Denise Brogan-Kator, chief policy officer at Family Equality Council, explained this shift in policy further:

“For children born abroad, the requirements for birthright citizenship differ for children born to married parents versus those born ‘out of wedlock.’ For children born ‘out of wedlock,’ the eligibility test is a higher hurdle and requires a biological connection between the child and the U.S. citizen parent, among other factors. Last summer, the Trump Administration modified the State Department’s internal Foreign Affairs Manual (‘FAM’) to state that, for a child to be considered as born to a married couple, the child’s biological parents must have been married to each other at the time of the child’s birth.

“Thus, under this policy, a child with same-sex parents is flagged as ‘out of wedlock’ because the child can have a biological connection to only one parent. As such, the State Department applies the higher hurdle to establish citizenship, and the biological connection must be to the U.S. citizen parent for birthright citizenship to be granted. To be sure, this ‘policy’ has not been subjected to the traditional administrative process of rulemaking that involves public comment but was a quiet insertion to an internal agency manual.

“Needless to say, this is resulting in nightmare scenarios for the many families headed by married same-sex couples who are building their families through assisted reproductive technology in other countries. In February 2019, a federal district court ruled in favor of a family whose son, born to a surrogate in Canada, was denied birthright citizenship because he was conceived with the sperm of a parent who is not a U.S. citizen. While the ruling did not explicitly strike down the State Department’s policy, the judge ruled that the boy is and has been a U.S. citizen since birth. The State Department appealed the ruling to the Ninth Circuit Court of Appeals earlier this month, but more cases are pending.

“This unconscionable attack on LGBTQ families is understandably causing anxiety for children and adults conceived through assisted reproductive technology and born abroad to married same-sex couples. There is no precedent for applying a policy like this retroactively, so this policy from the State Department is not a legal avenue to strip the citizenship of those who were born abroad to same-sex parents and whose birthright citizenship has already been recognized. Rest assured, if such action were to be attempted, there is an army of advocates ready to defend the citizenship status of our families. We at Family Equality Council are monitoring developments in this area closely and stand ready to take any actions we can to stand for the equal treatment of our families.”

About Family Equality Council

Family Equality Council advances legal and lived equality for LGBTQ families, and for those who wish to form them, through building community, changing hearts and minds, and driving policy change. Family Equality Council believes every LGBTQ person should have the right and opportunity to form and sustain a loving family, regardless of who they are or where they live. Learn more at familyequality.org.

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Media Contact:
Ed Harris, Chief Communications Officer, Family Equality Council
646-880-3005 x117  / eharris@familyequality.org