Family Law

Another Judge Rules U.S. Policy Discriminates Against Gay Dads

In deciding the case, Judge Brown applied the doctrine of constitutional avoidance.

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(Image via Getty)

On August 27, 2020, Trump-appointee Judge Michael L. Brown — who sits on the United States District Court Northern District of Georgia — ruled in favor of U.S. citizen dads Derek Mize and Jonathan Gregg, in their long fight for their daughter to be recognized as a U.S. citizen from birth.

Best. Podcast. Ever. Stop what you are doing now and check out this podcast interview with Mize and Gregg. Mize, at one time a practicing attorney, clearly explains the legal issues, while both dads recount the harrowing experience of their baby being denied U.S. citizenship, the prospect of being forced to live an ocean apart while Gregg undergoes treatment for a brain tumor, and the attorneys that stepped up to fight for their family. Among those legal warriors were Biglaw partner Susan Baker Manning of Morgan Lewis, Lambda Legal, and Immigration Equality.

Both Parents U.S. Citizens, But Not The Child? You might already be familiar with the backstory of this case from reading these earlier columns. Mize was born and raised in Mississippi. Gregg was a U.S. citizen from birth through his U.S. citizen mother, but was born and raised in the United Kingdom. The two adorably met at a swimming meet (again, check out that podcast interview) where Mize immediately knew Gregg was the one. Gregg was initially confused and unimpressed by Mize’s cross-pool American chin gestures (think, “what’s up” versus “what is that guy doing with his chin? Is he trying to say something to me?”). However, after an inseparable weekend, where even their future children were discussed, Gregg was convinced.

The couple married a year later. And when a British school friend of Gregg’s approached Mize at the wedding and offered to be a surrogate for the couple, they did not initially think she was serious. In the UK, unlike the U.S., a woman cannot receive compensation to act as a surrogate. Turns out, she was, indeed, serious. A few years later, their daughter Simone was born in England to the overjoyed dads.

Mize had been studious about all of the steps in the process, and even studied the American immigration code. The code said that a child “born of” U.S. citizen parents was a U.S. citizen. Case closed, that was easy. Moving on to the next item on the to do list. Unfortunately, at that point, Mize and Gregg did not know that the State Department had been interpreting the immigration code to exclude married same-sex male parents from the married parents section, nor had the other nightmare cases been publicized yet — such as the Dvash-Banks case, where one twin of a married same-sex couple was declared a U.S. citizen, while the other twin was denied U.S. citizenship.

The U.S. government has taken the position that the “born of … parents” provision of the code applies only when both parents are biologically related to the child. When one parent is not biologically related to the child — which is the case in a lot of LGBTQ+ families — the U.S. government looks to the “unwed” parents section of the immigration code, which contains a longer residency requirement. Gregg, having resided only four years in the United States, instead of the five required by the unwed section, could not pass on American citizenship under this provision.

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Constitutional Avoidance. In deciding the case, Judge Brown found that the doctrine of “constitutional avoidance” required that the court not apply the U.S. government’s interpretation requiring both Mize and Gregg to be biologically related to their child to fall into the wed section of the immigration code. Instead, he concluded the statute’s plain language could be interpreted in such a way — to not require a biological connection — to avoid finding the statute discriminatory and unconstitutional.

The Judge particularly pointed out the elasticity of the government’s interpretation of “born of.” In 2014, the government changed its interpretation to include a woman who gestationally carried the child and was legally the parent of the child (but not biologically related to the child, such as in the situation of an egg donor) to be within their interpretation of the statute.

It’s Not Over.

Mize and Gregg were not the first parents with a child denied U.S. citizenship under the government’s “biological” requirement. Other couples have faced this obstacle, and brought suit. So far, each one has won their case. And, each time, the government has appealed. Those appeals are still pending. If the pattern holds, Mize and Gregg will be facing the government’s appeal shortly.

Politics aside, I can’t help but notice that the government could, like, be doing something way more worthwhile with their resources than continuing to force an interpretation of the immigration code that discriminates against gay dads, as well as couples who turn to assisted reproductive technology to have children. I have yet to see a convincing defense as to why this is a priority of our country. Here’s hoping that the U.S. government takes this moment to change course and embrace an understanding that American families are formed in many different ways — which, at times, includes surrogacy, egg, sperm, or embryo donation — and are no less deserving of citizenship and the acknowledgment and protection of our government.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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