Gay couple sue when State Department withholds son’s US citizenship

Ethan Dvash-Banks was born 16 months ago in Canada, with the help of a surrogate mother, and now lives in Los Angeles with his parents, one of them a native of the United States. If his parents had been husband and wife, according to a newly filed lawsuit, Ethan would be recognized as a U.S. citizen.

But his parents are a married gay couple, his biological father was born in Israel, and Ethan, whose permission to remain in the country expired in December, is now at risk of deportation.

The State Department says its policy in such cases is to require evidence of a biological connection between the foreign-born child and a parent who is a U.S. citizen. But the lawsuit, filed Tuesday in federal court in Los Angeles, said the State Department applies that requirement only to same-sex couples.

The department’s policy, which took effect during the Obama administration, “is undermining, disrespecting, and rendering unequal the intimate relationship between same-sex married couples and the children they have and raise together,” lawyers for Ethan and his family said.

They said the government is violating the 2013 U.S. Supreme Court ruling that recognized same-sex spouses’ constitutional right to the same marital benefits as opposite-sex couples.

The lawyers also sued Tuesday in Washington, D.C., on behalf of the son of a married lesbian couple living in London. One of the women was born in Illinois, but her wife, the boy’s birth mother, is from Italy, and although both were listed as parents on the birth certificate in 2015, a State Department consular officer denied the child a U.S. passport later that year.

“If a married opposite-sex couple go into a consulate, have a marriage license that is valid and a birth certificate listing both of them as parents, they’re never asked about their biology. A same-sex couple is always asked who is the biological parent,” attorney Aaron Morris, executive director of Immigration Equality, a gay-rights legal organization that filed both suits, said Wednesday.

“Even if the State Department is not purposefully attempting to discriminate, this policy has the effect of singling out that entire class of people and treating them differently.”

The State Department declined to comment on the lawsuits and referred a reporter to the department’s written policy. It says a child must have “a biological connection to a U.S. citizen parent” to be considered a citizen at birth, and does not distinguish between same-sex and opposite-sex parents.

But the suit said federal immigration law entitles a child born abroad to U.S. citizenship if one parent is a married U.S. citizen who had lived in the United States for at least five years. The law requiring proof of a blood relationship between the child and a U.S. citizen parent applies only to children born “out of wedlock” — a statute, the suit said, that is regularly invoked against offspring of married same-sex couples.

Ethan’s parents, Andrew and Elad Dvash-Banks, met in 2008 in Israel, where Andrew, a California native, was a graduate student. They moved to Toronto and were married in 2010, when same-sex marriages were recognized in Canada but not in California or most other U.S. states.

They decided to have children through an anonymous surrogate, with both men donating sperm. After twin boys were born in September 2016, with both men listed as parents, they took the children to the U.S. Consulate in Toronto, where a consular officer interrogated them about the births and then required both children to undergo DNA testing, the suit said.

After the tests, the consulate granted U.S. citizenship and a passport to one child, Aiden, who was biologically linked to Andrew, but denied them to his brother Ethan, Elad’s biological son.

The State Department’s treatment of Ethan was “based on its erroneous and demeaning classification of him as a child born out of wedlock,” the suit said.

Soon afterward, the family moved to Los Angeles, bringing Ethan on a tourist visa that has now expired. The couple, both employed in that city, said they have applied for a green card for the child in hopes of fending off deportation.