Two gay men are married.
They are both U.S. citizens.
They have a child born from the sperm of one of the men using a donor egg.
They are the only parents listed on the child’s birth certificate.
But when they return home from Britain, where the child was born, to the U.S. and apply for the child’s American passport, they are denied.
A State Department policy, under the Trump administration, allows children to be treated as born “out of wedlock” if the egg and sperm don’t match married parents regarding transmitting citizenship.
“Out of wedlock” means a higher threshold comes into play for citizenship to transmit to the child.
One of the men, James Derek Mize, was born and raised in the United States.
The other, Jonathan Gregg, was born in the UK to an American mother making him a U.S. citizen as well.
The two married in 2015 and in 2017 Gregg moved to Atlanta, Georgia, to be with his husband.
In 2018, their daughter Simone was born via surrogate in London using a British friend’s donor egg and Gregg’s sperm.
But since the egg donor is not listed as a parent, under the “out of wedlock” clause, the Trump administration says Gregg – as the genetic father – needed to be a resident of the U.S. for five years.
He was not.
The couple is suing the State Department, with the help of Lambda Legal and Immigration Equality, for discrimination and violating their constitutional rights.
State officials say the policy is not discriminatory because it could apply to opposite-sex couples as well as same-sex couples.
Earlier this year, Instinct reported on a ruling by U.S. District Judge John F. Walter in a similar case of a married gay couple which said there is no federal law that requires a child’s biological parents to be married to transmit citizenship.
Mr. Mize and Mr. Gregg point out that when they went to the U.S. embassy to obtain a passport for Simone, they watched as some 20 opposite-sex couples presented the same documents as they had and were given passports for their children.
They note that none of the opposite-sex couples were questioned concerning how their children were conceived or to their biological relations.
Since Simone was born in London, the U.S. currently views her as a British citizen, and the only way her parents could bring her back home to the U.S. was through a tourist visa. But the visa expires soon, leaving Simone with no legal status to remain in Atlanta with her parents.
Mize recently told HuffPost that when the embassy applied a different standard to his marriage and child, “Every anxiety I’ve ever had in my life about being gay and different came into my body and I just wanted to cry.”