More than a year after the US State Department shrugged off existing same-sex marriage and immigration laws and rejected citizenship for a child of two gay dads, the agency is now appealing a federal judge’s ruling that the child is an American citizen.
As it turns out, the State Department has stuck to its posture in this kind of case for years — dating back before the Trump administration.
Israeli citizen Elad Dvash-Banks and American citizen Andrew Dvash-Banks were married in Canada in 2010 and had two sons via surrogates there in 2016 before moving to California. Andrew is the biological father of Aiden and Elad is the biological father of Ethan, but both fathers are legal parents of both kids. The Immigration and Nationality Act (INA) stipulates that the children — born in Canada — should both be American citizens because at least one of their parents is an American citizen.
Yet, the Rex Tillerson-led State Department argued otherwise, saying that Ethan — the boy whose biological father is not an American citizen — is also not American. In deciding the question of US citizenship for the two Canadian-born children, the State Department went so far as to order DNA tests on both of the boys.
The State Department conclusion would leave young Ethan as the only member of the Dvash-Banks not eligible for permant residency in the US; his father qualifies as the spouse of an American citizen.
Andrew and Elad, represented by the LGBTQ-focused legal group Immigration Equality, decided in January 2018 to challenge that finding in federal court in the Central District of California. The court ruled in February of this year that the boy is a “US citizen at birth” and gave the State Department — now headed up by Mike Pompeo — 60 days to appeal.
On the 60th day, the Trump administration moved forward with an appeal in the Ninth Circuit Court of Appeals, despite that court having twice ruled that the INA should be interpreted that there need not need be a biological link between children and their legal parents in order for them to be recognized as US citizens as long as one parent is an American citizen.
“They’re disappointed,” Kristen Thompson, the communications director for Immigration Equality, told Gay City News on May 10. “They were hoping for closure, and we’re upset that they have to continue this legal battle.”
In the meantime, the ruling stands and the boy is being recognized as an American citizen with a valid US passport. Thompson noted that it could be a year until oral arguments are heard in the Trump administration’s appeal.
Immigration Equality has seen numerous cases of the same nature involving surrogate children of bi-national LGBTQ parents who have been unfairly targeted by the State Department. The organization is also representing a married lesbian couple whose children have not been recognized by the State Department after they were born outside of the US. In that family’s case, one parent is an American citizen and the other is Italian. The family filed a complaint against the State Department and they have a status hearing before the DC Circuit judge on May 15.
Thompson said the State Department’s insistence in interpreting the INA law to require a biological connection is not unique to the Trump administration — she noted that the Obama administration employed the same approach — but it is unclear whether the State Department is pursuing the denial of citizenship for such children more vigorously.
“In the last couple of years, we’ve gotten dozens of inquiries,” Thompson said. “I think we’ve gotten three or four calls in the last couple of weeks.”
Pompeo, in appealing the district court ruling regarding the two gay dads, is building on his record of anti-gay intolerance dating back years as a Republican US House member from Kansas in voicing homophobic attitudes toward same-sex marriage, LGBTQ service members, and gay families.
Pompeo, in his first race for the House in 2010, said, “We cannot use the military to promote social ideas that do not reflect the values of our nation,” he blasted the Supreme Court’s 2015 marriage equality ruling as a “shocking abuse of power,” and, in the most relevant measure of his views on gay families, in 2014, he said, “If you’re asking for what is ideal, I think it’s being raised by a man and a woman.”
Now, as secretary of state, he’s using his powerful role to put those beliefs into action, effectively keeping bi-national LGBTQ families in legal limbo after they thought existing laws protected them.
“Since the Supreme Court ruling in Obergefell, more couples are able to get married and they’re finding themselves in situations where they have kids and have to deal with this,” Thompson said “The policy disproportionately affects same-sex couples.”
Out gay West Side State Senator Brad Hoylman, who is the father of two children born through surrogacy and is working to liberalize surrogacy law in New York, where surrogacy carried out for pay is currently illegal, said. “It’s outrageous that the Trump administration is trying to attack LGBTQ families. I absolutely consider my kids to be equal. The fact that our government would try to prove otherwise is ludicrous to the extreme. It’s really alarming that the State Department doesn’t have anything better to do with its resources than to attack this loving family. It undermines the notion that you don’t have to share all the same biology to be siblings.”