Does Change in Automatic Citizenship Rule have a Disparate Impact on Same-sex families?
By Dr. Mary Lee Cunill, PhD, Interpersonal and Health Communication
In 2015, the U.S. Supreme Court ruled that all state bans on same-sex marriage were unconstitutional. This ruling made gay marriage legal throughout America and guaranteed same-sex spouses all the same rights and privileges as opposite-sex spouses. In the United States, the law of the land is to treat all married couples the same regardless of sex, gender, or sexuality.
Unfortunately, this ruling did not explicitly address same-sex family ties and kinship, causing legal issues as same-sex spouses become parents. The concept of “chosen family” is one that LGBTQ individuals have embraced for decades, especially following the AIDS epidemic of the 1980s, when fear caused gay men to be abandoned by doctors, nurses, and their biological family. During this time, many lesbians stepped in as caregivers and even became “blood sisters” as they donated blood to their dying brothers.
Sadly, LGBTQ citizens are still fighting for the right to pursue happiness through having a family. Most recently, a married gay couple using a surrogate from the U.K. found their daughter denied birthright citizenship because she was born overseas. This situation occurred in part due to changes to automatic citizenship rules passed last year.
Situations like this reveal our implicit biases regarding how we define family and kinship relations. Something important to consider when making decisions around family relations is this: are you treating LGBT individuals the same as you would straight individuals? If a single parent adopted a child from overseas, would their child be denied citizenship? What about if a straight married couple used a surrogate? If one parent weren’t a citizen, would you deny their child citizenship?
The difference between prejudice and discrimination is action. While we cannot help our implicit biases, which inform our prejudices, we can help if we allow them to affect our actions. Treating humans differently based on the qualities of gender, race, sexuality, religion, age, and ethnicity is illegal under the Civil Rights Act of 1964. Most recently, sexual orientation was added to the list of protected categories. Under these protections, LGBT families should receive the same treatment as straight couples. When they don’t and are treated differently, intentionally or unintentionally, this different treatment based on a protected category is called disparate impact, and it is illegal and unconstitutional.
Understanding the difference between these terms is important. We cannot help our implicit bias—it is a result of being raised in a society that has varying groups that we prefer. We can, however, increase our self-awareness and pay attention when we feel discomfort regarding a situation. We can ask ourselves why we feel this discomfort and if it is affecting how we treat others. When our behavior is affected by our bias, this shifts our prejudice to discrimination, which is illegal and unethical.
As our schools, neighborhoods, workplaces, and government become more diverse, how can we increase our comfort with difference, so that we can fully embrace the Constitution upon which America was founded? The Constitution which states, “We the people…” desire to, among other things, “…secure the Blessings of Liberty to ourselves and our Posterity…”? Do we treat all our citizens the same regardless of their sexuality? Regardless of their birthplace? Is this a situation of disparate impact, and if so, how might we remedy it?
In essence, we are asking, under the constitution, “Do you have the right to have your marriage recognized as a same-sex couple, just like all other couples?” In America, we say yes.