Imagine my alarm as a gay conservative when I saw this Daily Beast headline: “Trump Administration to LGBT Couples: Your ‘Out of Wedlock’ Kids Aren’t Citizens.” I quickly scanned through the article and only became more concerned when I saw that 99 congressional Democrats had signed a letter calling the State Department policy in dispute “discriminatory” and “deeply disturbing.”
Yet, as is often the case with Democratic cries of homophobia, a closer investigation revealed that there was little basis for such amped-up outrage. It quickly became clear that the narrative liberal activists were pushing was highly misleading and transparently political.
The policy in question is an obscure State Department interpretation of the 1952 Immigration and Nationality Act, a law which defined the parameters for the awarding of birthright citizenship. Under current State Department rules, this law has been interpreted to require that American parents using a foreign surrogate must demonstrate a biological connection (i.e. via sperm or egg donation) to the child in question before citizenship is bestowed.
This primarily, but not necessarily exclusively, affects same-sex couples. Additionally, sometimes birthright citizenship has not been awarded under this policy in cases that involved a gay couple where the only parent with a biological connection to the child was not a U.S. citizen by birth, but rather by marriage.
This kind of conundrum was perhaps unavoidable, given that lawmakers in 1952, when the Immigration and Nationality Act was passed, could not have possibly imagined the kinds of surrogacy technologies and family structures that are common today. But nonetheless, it’s important to understand just how narrow this policy actually is.
The policy does not affect American gay parents who adopt American children or American gay parents who have a child using a U.S. resident as a surrogate.
It only affects American gay parents using a foreign surrogate who cannot demonstrate a biological connection between the child and a native-born or naturalized U.S. citizen.
If the Trump administration was trying to limit the parental rights of gay Americans, this clearly wouldn’t be the way to do it. In reality, this policy is probably just a State Department regulatory relic in need of an update given the rapid advancements in surrogate technology over the last several decades.
After all, despite the misleading narrative liberal activists have spun, this is not a new policy. In fact, it dates back to at least 2014 — during the Obama administration.
Where was the outrage then?
Surely if this was actually an attack on the LGBT community, the Daily Beast and Senate Democrats would not have sat by silently just because the policy was implemented under President Barack Obama. They’re only seizing on this relatively benign policy now because recent developments have provided an opportunity to use it as a political weapon against President Trump.
It’s just another block in the (mostly false) narrative they’ve constructed of an anti-LGBT Trump administration.
Still, it’s true that there are a few high-profile cases where the State Department’s current policy has clearly come up short. For instance, the Daily Beast report discusses two-year-old Ethan Dvash-Banks, who was born abroad through surrogacy and has two gay fathers. His only “biological connection” under the State Department’s policy is to one of his fathers who was not a U.S. citizen by birth.
Dvash-Banks was eventually granted U.S. citizenship by a federal judge, but his family faced a complicated and bureaucratic struggle to get there. The article uses other examples of similar families to paint a disturbing picture of LGBT families struggling to stay together.
But there’s one key fact that most coverage of the Dvash-Banks and others like them has left out: Even if the judge had ruled against them and this policy had remained an issue, they always had an alternate route to obtaining citizenship for their child. The Dvash-Banks could have gone through Customs and Immigration Services to naturalize the child, rather than having citizenship automatically bestowed upon birth. There’s no reason to believe their request would have been denied.
Is this inconvenient? Sure. But an assault on LGBT equality? Hardly.
Liberal LGBT activists should stop manufacturing outrage over imagined discrimination at the State Department under Trump. Maybe then they can finally move on to criticisms that have substance.
