Sex Bias in Citizenship Law Challenged

Challenging one of the few remaining gender-based federal statutes, women's advocates urged the Supreme Court to overturn the law that makes it harder for fathers to transmit citizenship to their foreign-born children than it does for mothers.

Martha Davis, NOW LDEF legal director

WASHINGTON (WOMENSENEWS)-The nation's highest court was asked Tuesday to overturn one of the last remaining federal laws that makes a distinction solely on the basis of gender: citizenship provisions for foreign-born children of American citizens.

And, as in many of the equal rights cases that have been struck down by the U.S. Supreme Court, the case involved a male victim of discrimination who was represented by a women's rights advocate.

The case challenges the citizenship rules for foreign-born children with unmarried parents, one of whom is a U.S.-citizen. It potentially affects tens of thousands of children of U.S. military personnel.In fact, Nguyen vs. Immigration and Naturalization Service presents a typical scenario from the Vietnam era, but with an important twist.

Joseph Alfred Boulais, a U.S. citizen, was an engineer working in Vietnam during the war. A child, Tuan Anh Nguyen, was born as the result of his liaison with a Vietnamese woman. Boulais returned to the United States after Saigon fell in 1975, bringing his 6-year-old son with him and moving to Houston. Boulais acknowledged paternity and reared his child.

Fast forward two decades: The son, a legal resident alien, is convicted of two felonies involving sexual assault. After he served his eight-year sentence, the Immigration and Naturalization Service began deportation proceedings, claiming that he did not have the right of citizenship even though he was the child of a U.S. citizen. It argued that upon his conviction, he lost his right to remain in the country.

The reason: His citizen father didn't undertake the extra steps beyond those required of a mother.

As the law stands now, if the mother of a foreign-born, non-marital child is a U.S. citizen and if the mother had resided in the U.S. for at least a year, then her child is automatically a citizen upon birth. A citizen mother, even if she abandons her child, confers citizenship at any time during a child's life.

Fathers Must Take Extra Steps to Make Foreign-Born Children Citizens

But when a father is a foreign-born child's tie to the United States, thefather must take certain steps before the child turns 18 in order totransmit citizenship: He must acknowledge paternity in court and promise tosupport the child until the age of 18. After the age of 18, the child thenmust apply for citizenship on his or her own. Boulais did not undertake these formalities, although he acknowledgedpaternity and supported his child.

The deportation proceedings crystallized the issues. Vietnam refused to accept the return of Nguyen and he now faces the prospect of spending the rest of his life in a U.S. deportation facility.

“The special requirements imposed on fathers, including the time limit for legitimizing or acknowledging the child, reflect the stereotype that fathers will not typically have such connections to their children,” said the brief on behalf of the father and son. It added that the citizenship law, by giving the stereotypes the force of law, “operates to deny rights to fathers like Joseph Boulais who do not conform to expected sex-based social roles.”

Martha F. Davis, legal director for NOW Legal Defense and Education Fund, argued that the citizenship law was unconstitutional on its face because it requires males to take extra steps to transmit their citizenship to their children. (NOW Legal Defense is the publisher of Women's Enews.)

“We are bringing this case to promote equal protection under the law,” said Davis. “This statute relies on stereotypes, not real life, in assuming that only mothers are ‘real' parents. The statute is outdated, wrong and unconstitutional.”

Seeking a Single, Gender-Neutral Standard for Mothers, Fathers

Edwin S. Kneedler, deputy solicitor general, argued on behalf of the Immigration and Naturalization Service, emphasizing that the identity of a child's mother was nearly always readily available at birth, while the identity of the father was often difficult to determine.

“Why not have one standard?” Justice David Souter asked repeatedly, apparently not convinced that problems with identifying the father should result in extra burdens for the father to assume parenthood.

Justice Sandra Day O'Connor pressed Kneedler for a remedy that was gender-neutral. He was not able to provide one. However, Davis, arguing for the father and son, proposed striking down as unconstitutional the provisions that imposed extra burdens on fathers.

“We argue that men should have the same rights as women in transmitting citizenship to their out-of-wedlock, foreign-born children,” said Kathy Rodgers, president of NOW Legal Defense. “Laws based on gender stereotyping of men's and women's roles harm everyone and cannot be allowed to stand,” she added.

“Removing one of the last gender-based federal statutes remaining on the books will help protect the principle of equal protection, strengthening and insuring women's rights. True equality is achieved when both men and women are considered equal before the law.”

For three decades, the Supreme Court has held that sex-role stereotypes face heightened scrutiny under the constitutional guarantee of equal protection and several milestones in women's rights have resulted from equal protection cases brought on behalf of male plaintiffs.

An example is the 1973 case of Frontiero v. Richardson, the first case argued by now-Supreme Court Justice Ruth Bader Ginsburg. She challenged a federal statute that automatically granted male members of the uniformed forces housing and benefits for their wives, but required female members to demonstrate the actual dependency of their husbands before granting the same benefit. The statute was declared unconstitutional.

Attorney Nancy A. Falgout of Houston and the American Civil Liberties Union are co-counsel with NOW Legal Defense in representing the father and son petitioners.

Victoria Graham was a foreign and domestic correspondent for The Associated Press for two decades, later working for UNICEF, the High Commissioner for Refugees and nonprofit organizations in the United States.