In a recently filed federal lawsuit, two same-sex parents in Los Angeles are challenging a U.S. immigration policy which they say discriminates against LGBT people by denying birthright citizenship to the children of gay couples depending on the children’s blood relationships. At the centre of the issue are the two children, twins- one of which has been granted American citizenship and the other, who has not. The children’s fathers (a U.S. citizen and an Israeli citizen) are both listed on the twins’ birth certificates as the parents of the children, however, because one twin has an Israeli father and one has a U.S father, citizenship was only granted to one of them.

The Family’s Story

The father’s, Andrew and Elad, met in Tel Aviv ten years ago, when they were university students. Andrew is a dual U.S.-Canadian citizen who grew up in Los Angeles before moving to Israel to work and study. Elad is from Israel.

The couple knew that they could not marry and have children in the U.S, because gay marriage was still illegal at the time. Instead, in 2010, they moved to Canada where their marriage could be legally recognized. While living there, they had two twin sons born through the same surrogate.

When the family sought to get recognition of the twin’s U.S. citizenship, the fathers were subjected to invasive questions about how their children were conceived and eventually told that they had to submit DNA tests and other proof of their biological relationships to the children (a requirement that does not exist for children of married U.S. citizens). Aiden, the twin conceived using the sperm of the American father obtained citizenship and an American pass passport. Ethan, the twin conceived using the sperm of an Israeli father, was not granted U.S. citizenship and must enter the U.S. on a tourist visa for extended stays.

The family, who want to live permanently in California to be close to Andrew’s extended family was understandably devastated and filed the lawsuit.

The Lawsuit

The fathers’ claim is one of two filed by Immigration Equality, an LGBTQ immigrant rights group who is arguing that the State Department is discriminating against same-sex binational couples and that it is unconstitutional to deny the second twin citizenship. They claim that the children of a U.S. citizen who marries abroad are entitled to U.S. citizenship at birth irrespective of where they are from and whether or not their other parent is also American. They also argue that the State Department incorrectly relied on a rule that is intended to require unwed fathers to establish blood relationships, not married gay parents.

The second lawsuit was filed on behalf of a second family in a similar situation- a same-sex couple (one a U.S. citizen and one an Italian citizen) who met in New York, and eventually married and had two sons in London. One son was granted citizenship because he was carried by the U.S. mother and the other was denied because he was carried by the Italian mother.

The Parent’s Reaction

Elad, who has a U.S. green card, told The Guardian:

That moment was hard…[w]hat the state department decision has done was to basically tear my family apart.

Andrew added:

The message is that you’re not fully equal. Your family is less than other families. My son has been wronged here by the government. We’re fighting this to protect our son and our family.

The fathers’ lawyer, Aaron C Morris the Executive Director of Immigration Equality, noted:

The state department is treating same-sex couples as if they were not married, and they are disenfranchising their children. Stripping a child of citizenship is one of the most heinous detriments the government could do to a child simply because his parents are gay, lesbian or bisexual.

The U.S. Supreme Court’s 2013 repeal of the Defence of Marriage Act (DOMA) which had previously prohibited the federal government from recognizing same-sex marriage has opened the door to unprecedented legal challenges now being brought by same-sex couples and families.

Morris notes that while there is no data about the number of same-sex families that have been negatively impacted, every married gay couple in this same situation is being denied citizenship.

What Now?

Prior to filing the lawsuit the fathers were anxious about potentially having to one say explain to their twins why the government has not treated them equally, and why Aiden can run for President, but Ethan cannot.

The family eventually moved to California, despite Ethan’s lack of citizenship. They applied for a green card for him, but are still waiting, which means that he is currently undocumented and has no legal status. The fathers are hopeful that the twins will eventually have the same rights, and that their family’s legal batter will “make history” and eventually change the rules for everyone.

We will continue to follow developments in this ongoing matter and will provide updates as they become available. In the meantime, if you have questions about your rights here in Canada, including questions about common law relationships and/or same-sex marriage, contact experienced and trusted Windsor family lawyer Jason P. Howie at 519.973.1500 or online. We serve clients in Windsor, Essex County and throughout the region.