Mize and Gregg filed a federal lawsuit in U.S. District Court in Atlanta late last month claiming that by not recognizing their daughter as an American citizen, the State Department is violating the Immigration and Naturalization Act. The couple is also accusing the government of discriminating against them because it is not treating their marriage as it would that of a heterosexual couple.
This is at least the third case since same-sex marriage was legalized where the State Department has denied citizenship to a child born abroad to married, same-sex American parents. In one of those cases, a California judge ordered the State Department to issue the child a passport. The department, however, is appealing the decision.
A spokesperson for the State Department declined to comment on the Georgia case, citing the litigation.
“It’s harder to ignore the broader issues,” said Karen Loewy, an attorney with Lambda Legal who is part of Mize and Gregg’s legal team. “Yes, this is about Simone, but it is also about what does the promise of marriage equality really mean.”
“A Direct Rebuttal”
On a recent afternoon, Simone rambled around the living room of her home as her fathers looked on. One minute she banged on a toy drum set, the next she ran around clutching her sippy cup.
Mize scooped her up in his arms and kissed her curly black hair.
“She’s the center of our world,” Mize said, as he sat down and cuddled her in his lap. Two walls of the living room are covered with photographs of extended family. Simone is front and center in many of them.
"The message that's coming from the State Department is a direct rebuttal of our effort to form a loving and caring family." —Jonathan Gregg
Simone was conceived using a donor egg and Gregg’s sperm. A good friend of Gregg’s in England carried the pregnancy to term and both men were in the delivery room when Simone was born last summer. Gregg cut the umbilical cord. Mize was first to hold their infant. As he held her, he said, he told her he’d love and protect her “for the rest of your life.”
Neither he nor Gregg realized that pledge would be put to the test so quickly.
Their case centers on how the State Department interprets a set of immigration laws that confer citizenship on those born abroad. The laws have been around for decades and have been amended at least five times since the 1960s. Even though the immigration statutes don’t mention biology, the department’s policy — which is based on those statutes — focuses on specific genetic connections between a child and his or her parents.
To obtain citizenship, a child born abroad “in wedlock” must be born “to a U.S. citizen mother and U.S. citizen father,” according to the policy. It also states a child can only be born “in wedlock” if the “genetic and/or gestational parents are legally married to each other” when the child is conceived or born “and both parents are the legal parents of the child under local law at the time and place of birth.”
The department’s policy sets more stringent residency requirements for parents such as Mize and Gregg, who are not both biologically connected to their child. In those cases, a child conceived and born through assisted reproductive technology can be considered “out-of-wedlock.”
“The message that’s coming from the State Department is a direct rebuttal of our effort to form a loving and caring family,” Gregg said.
“Tell her story”
Mize and Gregg brought Simone home on a tourist’s visa in September and Mize became a stay-at-home dad while Gregg worked. Mize’s mother lives nearby and helps care for Simone. In March, the British government issued a parental order stating that Gregg and Mize were Simone’s legal parents, the men said. The couple’s names are the only ones listed as parents on Simone’s birth certificate, according to the lawsuit.
Simone is taking a break with her two fathers, Derek Mize and Jonathan Gregg. The couple are U.S. citizens, but the State Department is denying their daughter American citizenship. The men are suing the federal government on grounds of discrimination.
But in April, when Mize went to get a Social Security card for his child, he said he was told he and Gregg needed first to get a Consular Report of Birth Abroad of an American Citizen certificate from the U.S. Embassy in London. The family returned to England to get the document, thinking there would be no problem.
What ensued at the embassy was a nearly four-hour ordeal with officials. There, the couple learned the complexities of rules governing U.S. citizenship for those born to Americans living abroad. In addition to the genetic requirements, which they couldn’t meet as a same-sex couple, the U.S. residency stipulations posed a problem.
Mize has lived in the U.S. all of his life. Gregg, however, only moved to the U.S. permanently after he and Mize got married in 2015. Though Gregg has U.S. citizenship through his mother, the law requires a U.S. citizen to live in the U.S. for five years prior to the birth of the child for that child to have citizenship.
“I went to my government and they said, ‘That’s not your child. You’re not a father,’” Mize said.
The couple said they didn’t know any of this before Simone was born. They said embassy officials gave them a letter to help them reenter the U.S., but stopped short of giving them the Consular Report of Birth Abroad certificate. The men sought legal representation once they returned to Atlanta.
“The State Department’s interpretation is almost absurdist,” said Aaron Morris, an attorney representing the couple through Immigration Equality, which has represented other same-sex couples with this issue. “If Congress wanted to put a biological requirement in the statute, they would have done so.”
Mize and Gregg don’t expect immigration officials to remove their daughter from their custody but they are concerned about what may come next. They are considering applying for a green card for Simone to offer some legal protections until the case is resolved.
They also are focused on trying to rear her like any other American child. Last month they took a family trip to Six Flags with Gregg’s sister and niece who were visiting from England. For now, Simone can’t leave the country.
“We did nothing wrong,” Gregg said. “She’s going to tell her story for the rest of her life and she’ll be able to tell it with pride.”