Are “legitimacy” clauses in the US nationality laws legitimate?

Are “legitimacy” clauses in the US nationality laws legitimate?

If you are in a nation where only the elites get opportunities, US promises great rewards for honest hard work. If you are raised in a culture of repression, US promises immense personal freedom, if you are in a war and terrorism torn country, US promises personal safety.

There can be multiple reasons why someone would want to move to the United States of America, one of those might be “where” they currently are. However, the road to US citizenship isn’t rosy for everyone. The question of ‘legitimacy’ in the US nationality laws mars many lives. Miranda v. Sessions is one such case. The case highlights gender-based distinctions in U.S. nationality law.

A case study

Coming to the case, Mr Miranda was born outside the United States to unmarried parents and later moved to the United States with his biological mother. His biological parents later married, thus legally legitimating the relationship between Mr Miranda and his father. Now it must be known that, Mr Miranda’s mother became a naturalized U.S. citizen while Mr Miranda was still a minor, and on that basis, Mr Miranda asserted that he had obtained derivative U.S. citizenship as well, not realizing the fact that as per US nationality laws, Mr Miranda’s nationality is the same as his legitimate father and has nothing do with his mother.

As per the provisions of the law in the US, had Mr Miranda’s mother remained single and not married Mr Miranda’s father, only then Mr Miranda could have inherited his mother’s nationality. Simplistically, had Mr Miranda been an illegitimate child of a mother with US citizenship, then he would have been an American citizen in the eyes of law.

According to the law of the land — A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfilment of the following conditions: The naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is unmarried and under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the [mother] .

The law of the land

The US nationality law does not take the cognizance of mother’s nationality but only of the father’s in cases where the child is legitimate. The nationality laws, which are in violation of the Fifth Amendment’s Equal Protection Clause, are based on the belief that only the male member is the head of the family. This is a clear case of gender discrimination. It abides by the principle that when their parents are married, children should follow the status of their father rather than their mother, and that; and when their parents are not married, children should follow the status of their mother as “illegitimate” children.

Thus, because Miranda was legitimated (as his parents got married), he followed his father’s nationality status. Miranda’s mother’s naturalization did not result in Miranda becoming a naturalized citizen, even though he was under the care of his mother.

Consequences of discriminatory ‘legitimacy’ law

It must be understood that sex-discriminatory nationality laws deny equal rights to men and women to acquire, change, or retain one’s nationality or to confer nationality to one’s children or spouse. Such discriminatory laws can prevent children from being recognized as a citizen in their mother’s country, even when the child is born in that country. They can also prevent foreign husbands from obtaining their spouses’ nationality, even while that country grants nationality to foreign wives of male citizens. Sometimes, a woman may lose her nationality because of the marital status, sometimes a child loses his nationality due to his parents’ marital status (like in the case of Miranda). It has been found out by the researchers that gender discrimination in nationality laws are one of the greatest perpetrators of statelessness.

It must also be taken into account that the inability of women to pass on their nationality on an equal basis as men can result in a range of restrictions for their children and foreign spouses, including in their ability to study, work, travel, access healthcare and to fully participate in society. Thereby, these kinds of nationality laws result in numerous human rights violations and are themselves in contradiction to international law.

The initiatives

It cannot be denied that the laws regarding US citizenship obtained through acquisition are some of the most complex of all of the citizenship laws and take into account things like the citizenship of parents, as well as if the child was born in or outside of wedlock. More importantly, this complexity has not lessened at all even as Congress has made major changes to these laws throughout history.

Acknowledging the gender-discriminatory nationality laws in various nations including the US, an international campaign to end gender discrimination in nationality laws was launched today by a coalition of civil society groups, supported by UN Women and the UN refugee agency in 2004. The UN-backed campaign urges nations around the globe to reform their laws so that women have the same right as men to transmit their nationality to their children and foreign spouses and in their ability to change and retain their nationality.

The road ahead

Fortunately, things are not all bad. In the recent past, there has been a positive trend with a number of countries reforming their laws to ensure gender parity in nationality matters in recent years. In the last ten years or so, as many as 11 countries have reformed their laws to achieve gender parity in nationality matters namely — Egypt, Algeria, Indonesia, Morocco, Bangladesh, Zimbabwe, Kenya, Tunisia, Yemen, Monaco, and Senegal. The United States too has done away with such discriminatory norms in many areas of law. It is high time for the US to follow the suit in the nationality guidelines as well.

As the saying goes, “Bad laws make bad cases”. Hence, the Congress must make an amendment to the existing US nationality laws to end the distinctions of “legitimacy”.

As far as India is concerned, there has been a meeting over legitimacy in Delhi. These people were from different groups and different views. Some individuals were convinced of the fact that transparency and inclusiveness are important aspects of the government’s ability to maintain the concept of legitimacy among the citizens. Some individuals had a different view on it.

About the Author: Rakesh Vashi is the student of iilsindia and likes to write about different aspects of law.

Emailrakesh.vashi1@gmail.com