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Victory! State Department Withdraws Appeal in Cases of Same-Sex Couples' Children Refused Passports

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October 27, 2020
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Left: Roee and Adiel Kiviti with their two children. Right: Derek and Jonathan Mize-Gregg with their daughter.

On Monday, two key legal victories on behalf of married same-sex couples and their children became final after the U.S. State Department withdrew its appeal in Kiviti v. Pompeo and decided not to appeal the district court’s decision in Mize-Gregg v. Pompeo. In both cases, federal district courts found the U.S. Department of State’s refusal to recognize the U.S. citizenship of the children born abroad to two married same-sex, U.S. citizen couples to be unlawful.

In Kiviti v. Pompeo, the U.S. District Court for the District of Maryland held that Kessem Kiviti, the daughter of same-sex married couple Roee and Adiel Kiviti, had been a U.S. citizen since birth. In the lower court’s June 17, 2020 decision, the court held that for the children of married parents, the law required no biological connection to a parent in order for the child to be born a citizen. The court also expressed concern that treating the marital children of same-sex couples as if they were born out of wedlock raised serious constitutional issues. With the withdraw of the appeal, the district court decision is now final.  

“We are very relieved, on behalf of our daughter, on behalf of our family, and on behalf of LGBT families across this great country of ours,” said Roee Kiviti. “The law was always clear. We knew it, the courts knew it, and now the State Department knows it, too.” Adiel Kiviti added, “This was never just about us. It was always about standing up for what’s right. We are grateful to those who did it before us, and we are humbled to be a part of the ongoing struggle for justice.”

In a similar case, the State Department on Monday elected not to appeal Mize-Gregg v. Pompeo. As such, the August 27, 2020 decision of the U.S. District Court for the Northern District of Georgia will also stand. In Mize-Gregg, Simone Mize-Gregg, daughter of Derek and Jonathan Mize-Gregg, was declared to be a U.S. citizen from birth after the court found the U.S. Department of State’s policy raised serious constitutional questions. 

“We are extremely grateful that this fight is over and won,” said Derek Mize and Jonathan Gregg. “All we ever wanted was for Simone to be treated fairly. This process has reaffirmed for us that standing up for equal treatment is always right, no matter how difficult it is or long it may take.” 

“Every court to have looked at this issue has concluded that the Department of State cannot refuse to recognize the U.S. citizenship of children born abroad to married same-sex couples. We are gratified that the victories of the Kiviti and Mize-Gregg families are now final and we hope that the Trump Administration and the State Department will abide by these courts’ decisions when it encounters other families headed by same-sex couples,” said Omar Gonzalez-Pagan, Senior Attorney at Lambda Legal and one of the lawyers for the families. “No family should have to go through what the Kiviti and Mize-Gregg families endured.” 

These two cases squarely rejected the State Department’s attempt to insert a harmful, baseless biology requirement into the citizenship protections children of married citizen parents receive. In so doing, these courts kept the promise of Obergefell that married same-sex couples are entitled to the full range of marital protections, and that includes the right to be recognized as their children’s parents regardless of who has a biological connection.” said Karen Loewy, Senior Counsel at Lambda Legal.

The two families were represented by Aaron C. Morris for Immigration Equality; Omar Gonzalez-Pagan, Karen Loewy, and Tara Borelli for Lambda Legal; and lawyers from the law firm Morgan, Lewis & Bockius LLP.