State Department ends policy that denied citizenship to children born abroad to same-sex couples

Derek Mize and Jonathan Gregg’s daughter Simone was born via surrogate in England, yet the previous administration refused to issue her a U.S. passport “[b]ecause only one of Simone’s fathers has a biological connection to her,” Lambda Legal said last year. That administration instead “treated Simone as though she was born out of wedlock, a classification which requires more stringent requirements for recognition of her citizenship.” The couple sued—and won. The Kiviti family similarly sued the administration for refusing to recognize their then-two-month-old’s child U.S. citizenship, and also won.

But that administration continued fighting the cases, ultimately surrendering its effort when it dropped its appeal last fall. “Every court to have looked at this issue has concluded that the Department of State cannot refuse to recognize the U.S. citizenship of children born abroad to married same-sex couples,” Pagan said at the time. The Biden administration’s decision at the State Department this week now officially adopts that position.

“We are relieved and thankful that our fight for our family to be recognized by the government has finally ended,” said Allison Blixt, another plaintiff in litigation against the previous administration. She and her spouse, Stefania Zaccari, sued when that administration refused to recognize their son’s U.S. citizenship because his birth parent, Zaccari, was an Italian citizen. “U.S. birthright citizenship, however, does not depend on a biological relationship between the child and the U.S. citizen parent; it relies on whether the child is born of a married couple, one of whom is a U.S. citizen,” Immigration Equality said.

“We knew we would succeed eventually, as trailblazers before us fought and won marriage equality,” Blixt continued. “Our marriage is finally recognized and treated equally. Lucas, who made me a mother, will finally be treated as my son and recognized as American, as his brother always has been.” While the family’s litigation is among those that remain pending, “the guidance issued on Tuesday may soon render the litigation moot,” The New York Times reported.

“The State Department’s policy also failed to recognize the validity of the marriages between same-sex couples like Allison and Stefania,” Immigration Equality said. “It deemed their children to be born out of wedlock, and it therefore considered the biological parent as unmarried. This interpretation was at odds with the clear intent of Congress in passing the Immigration and Nationality Act, and it deprives same-sex married couples of the fundamental rights and attributes of marriage.”

The Biden administration from day one has taken a number of sweeping actions to protect the rights and dignity of LGBTQ Americans. Following his inauguration, Biden issued an order “aimed at providing protections on the basis of both sexual orientation and gender identity in employment, housing, and education,” Daily Kos’ Kerry Eleveld reported.

More recently, the president this month restored protections for LGBTQ people in healthcare settings, Daily Kos’ Marissa Higgins reported. While that restored Obama-era protections decimated by the previous administration, “[t]here’s simply no question that the Biden administration is significantly more pro-LGBTQ than the Obama administration,” legal reporter Mark Joseph Stern tweeted following news of the State Department’s decision. “It’s a remarkable shift.”

“This is a remarkable moment for all the LGBTQ families who fought the U.S. State Department’s unconstitutional policy,” said Immigration Equality executive director Aaron Morris. “It demonstrates that when our community is united, and relentlessly pushes back against discrimination, we win. We have once again affirmed that it is not biology but love that makes a family.”