Senators in Urge State Dept. to Reverse Policy Discriminating Against Children of LGBTQ Couples Born Abroad

Washington – Senator Dianne Feinstein (D-Calif.) joined Senators Kamala D. Harris (D-Calif.) and Senator Jeff Merkley (D-Ore.) on Thursday to push back on a State Department policy that discriminates against LGBTQ couples in recognizing the citizenship of their children. In a strongly-worded letter, the Senators urged Secretary of State Mike Pompeo to immediately reverse this policy, which threatens the constitutional right of citizenship for children of same-sex couples when those children happen to be born abroad.   

The senators’ letter comes as Americans are celebrating LGBTQ Pride Month this June. This June also marks the 50-year anniversary since the Stonewall Riots in Manhattan, an event which ignited a civil rights movement and a push for freedom to marry, finally won through the landmark 2015 Obergefell v. Hodges Supreme Court decision. Regrettably, the State Department’s policy runs afoul of the precept that same-sex married couples must be treated equally under the law. 

“Your Department’s reinterpretation of immigration law to deny the constitutional right of citizenship to the children of same-sex couples who are born outside the United States is extraordinary and deeply disturbing,” the senators wrote. “Even in the face of the mounting hardship the policy has created for loving families, your Department has gone to great lengths to continue to defend a policy in Federal Court that separates American families before they reach the U.S. border edge.”

The senators highlighted the case of Andrew and Elad Dvash-Banks, a married same-sex couple—one an American citizen, and one an Israeli citizen—who had twin sons through a gestational surrogate in Canada. The couple has a lawful marriage license recognized by 50 states and the District of Columbia, the Social Security Administration, the Internal Revenue Service, and other branches of the federal government, yet the State Department bizarrely classified the sons’ births as being “out of wedlock,” and granted citizenship only to the twin that was biologically related to Andrew. Under Pompeo’s leadership, the State Department continues to defend this decision in court, despite a federal judge ruling against the Department’s position and finding that its reasoning for denying the other twin citizenship was “strained.”

Unfortunately, other same-sex couples in recent years have had similar experiences to the Dvash-Banks’. And the administration’s policy follows other anti-LGBTQ actions from the State Department under Pompeo’s leadership, including the announcement last October that the Department would no longer grant visas to the same-sex partners of foreign diplomats.

“Every new American parent should focus on celebrating the birth of a child, not be consumed with fear that all members of their family may not be welcomed back home to the United States,” the senators’ letter continued. 

“The State Department’s discriminatory misinterpretation of U.S. law will continue to harm American families. That is why we call upon you to immediately drop the Department’s appeal of the Dvash-Banks family court case and make it clear that every U.S. married couple is entitled to the same rights under the U.S. Constitution, no matter whom they love,” they concluded.

In addition to Feinstein, Harris and Merkley, today’s letter was signed by Senators Edward J. Markey (D-Mass.), Chris Murphy (D-Conn.), Patrick Leahy (D-Vt.), Bernie Sanders (I-Vt.), Catherine Cortez Masto (D-Nev.), Tom Udall (D-N.M.), Jacky Rosen (D-Nev.), Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), Tammy Duckworth (D-Ill.), Chris Coons (D-Del.), Cory Booker (D-N.J.), Maggie Hassan (D-N.H.), Ron Wyden (D-Ore.), Bob Casey (D-Pa.), and Tim Kaine (D-Va.).

The full text of the letter can be found here and below.

Mr. Secretary,

We write to urge you to reverse the State Department’s discriminatory policy towards same-sex couples that have children abroad. Your Department’s reinterpretation of immigration law to deny the constitutional right of citizenship to the children of same-sex couples who are born outside the United States is extraordinary and deeply disturbing. Even in the face of the mounting hardship the policy has created for loving families, your Department has gone to great lengths to continue to defend a policy in Federal Court that separates American families before they reach the U.S. border edge.

Since the landmark 2015 Obergefell v. Hodges decision, which extended the freedom to marry to all Americans, same-sex married couples abroad followed a process – consistent with the Immigration and Naturalization Act (INA) – to be granted a U.S. passport and U.S. citizenship for a child born abroad. After the Obergefell decision, the Department of Homeland Security made it clear that it would apply “all relevant laws to determine the validity of a same-sex marriage” as it does for opposite-sex marriages.

However, your Department’s misapplication of the INA fails to apply immigration laws equally to same-sex married partners, particularly those who turn to Alternative Reproduction Therapy (ART) and gestational surrogacy to have children. As ART is often cost-prohibitive for many same-sex couples in the United States, some opt to have their children born in Canada or elsewhere where providers of ART provide the service on a not-for-profit basis. Section 301 of the INA makes no requirement that either parent of a U.S. married couple – regardless if they are same – or opposite-sex – must prove biological relation to their child. Your Department’s guidance redefines Section 301(g) of the INA by saying that children are considered born “out of wedlock” if they are not biologically related to both parents.  This appears to be a thinly veiled attack on LGBTQ Americans whose children are conceived through the use of egg donors and gestational surrogacy.

In the case of Andrew and Elad Dvash-Banks, your policy has threatened to separate two twin brothers born just four minutes apart. Andrew, a U.S. citizen, and Elad an Israeli citizen, married in 2013 in California and gave birth to twins, “E.J and A.J” through a gestational surrogate in Canada. Your Department bizarrely defined the birth of Elad and Andrew’s twin sons as being “out of wedlock,” meaning that only A.J., the one twin biologically related to Andrew, would be granted citizenship at birth. U.S. District Judge, John F. Walter found your Department’s reading of U.S. immigration law – which strips American newborns of their rights under the Constitution – as “strained.” Yet your Department continues to defend this policy in Federal Court. 

The Dvash-Banks family, unfortunately, is not an isolated case. Additional same-sex couples have publicly come forward to share harrowing stories of their newborn son or daughter being denied a U.S. passport at U.S. consulates and embassies abroad even though they have met every statutory requirement under Section 301 of the INA. Stories after stories have recently been chronicled of same-sex couples being told by your Department that their marriages are, by definition, invalid, and that any children they may have abroad risk becoming stateless. Every new American parent should focus on celebrating the birth of a child, not be consumed with fear that all members of their family may not be welcomed back home to the United States.

Unfortunately, the State Department’s defense of this discriminatory policy follows another regrettable action that targets, rather than champions the rights of LGBTQ persons. Last October, the State Department announced it would not grant visas to the same-sex partners of foreign diplomats serving at international organizations and at bilateral missions in the United States, leaving such diplomats with an awful choice: separate from their partners or get married and face possible termination or prosecution in their home countries, 69 of which criminalize homosexuality.

The United States can best advocate for LGBTQ rights around the world by living its values at home, especially during this month of Pride. That starts with reversing your misguided policy regarding children born abroad by ART and surrogacy, removing roadblocks for foreign diplomats serving in the United States, and changing the administration’s muted response to persecution of LGBTQ persons in Chechnya, Brunei, and beyond.

The State Department’s discriminatory misinterpretation of U.S. law will continue to harm American families. That is why we call upon you to immediately drop the Department’s appeal of the Dvash-Banks family court case and make it clear that every U.S. married couple is entitled to the same rights under the U.S. Constitution, no matter whom they love.

Sincerely,