Lawsuits are not something foreign to the LGBTQ community when it comes to pushing for equality and civil rights. Challenges have led to victories in cases such as Lawrence v. Texas and the three marriage equality ones that led to LGBTQ couples being able to marry.
These cases represent a broad spectrum of individuals who are pushing “the system” in hopes of securing the rights and privileges afforded to their straight counterparts. Each are championed by Lambda Legal and others.
CASE 1: Citizenship of children born abroad to married same-sex parents
NEW YORK, N.Y. — Lambda Legal, Immigration Equality and pro bono counsel Morgan Lewis urged federal district courts in Georgia and Maryland to compel the U.S. State Department to recognize the U.S. citizenship of two children born abroad to married same-sex couples who are themselves U.S. citizens. Children born abroad to married different-sex parents who are U.S. citizens are routinely recognized as U.S. citizens, but the State Department is deliberately miss-applying federal statutes to deny similar treatment to the marital children of same-sex couples.
“As U.S. citizens we never conceived that our child would face discrimination from our own government and be denied her rightful citizenship,” plaintiff Derek Mize said. “The State Department’s treatment of our family has been a source of stress for us, but we are optimistic that soon a court will recognize us — a family with two married parents and a precious daughter.”
“Our focus is our little girl whose rights have been infringed upon by our government,” said plaintiff Roee Kiviti. “Every parent wants to protect their child and through this case, we are trying to do just that.”
Lawyers representing same-sex married couple and U.S. citizens Derek Mize and Jonathan Gregg filed a motion for summary judgment asking the U.S. District Court for the Northern District of Georgia to compel the State Department to recognize the U.S. citizenship of the couple’s daughter, Simone Mize-Gregg. Just days before, the same lawyers filed a similar motion in the U.S. District Court for the District of Maryland requesting the court to force the State Department to recognize the U.S. citizenship of Kessem Kiviti, daughter of U.S. citizens and same-sex couple Roee and Adiel Kiviti.
“The U.S. Constitution mandates that same-sex couples and their children be afforded equal dignity and the full constellation of benefits tied to marriage. Here, though the Immigration & Nationality Act recognizes as U.S. citizens the children born abroad to U.S. married couples, the Department of State refuses to recognize as U.S. citizens such children if their parents are of the same sex,” said Omar Gonzalez-Pagan, Senior Attorney for Lambda Legal. “The State Department’s refusal to recognize the citizenship of these children is not only cruel and dangerous, it is also contrary to the law and our constitutional guarantees of liberty and equality. The courts should declare these children to be U.S. citizens and set aside the State Department’s actions as unlawful.”
“The law is crystal clear that Simone and Kessem have been U.S. citizens from the moment they were born. The State Department’s refusal to recognize that simple fact is absurd. We will keep fighting for these little girls and their families for as long as it takes.” said Aaron C. Morris, executive director at Immigration Equality.
The State Department’s treatment comes from its conclusion that, since one of the parents is not biologically related to the child, they consider the child to be “born out wedlock” and therefore, not eligible for U.S. citizenship under the section applicable to the children of married couples. The couples’ lawyers argue that the State Department’s policy in effect treats married same-sex couples as if their marriages did not exist, unconstitutionally stripping their children born abroad of their rightful U.S. citizenship.
“The Supreme Court has been clear that married same-sex couples cannot be denied the same protections that different-sex couples receive, and that includes the right to be recognized as their children’s parents regardless of who has a biological connection to a child. The State Department cannot continue to treat LGBT families like second-class citizens and consign their children to citizenship limbo,” said Karen Loewy, senior counsel for Lambda Legal.
Mize and Gregg had their daughter Simone via surrogacy in England, and both fathers are listed on her birth certificate. When they applied for recognition of her U.S. citizenship, the U.S. consulate in London rejected their application. Because only one of Simone’s fathers has a biological connection to her, the State Department is disregarding the couple’s marriage and is treating Simone as though she was “born out of wedlock,” a classification that requires more stringent requirements for recognition of her citizenship.
Roee and Kiviti had their daughter Kessem via surrogacy in Canada in February 2019. Because only Adiel has a biological connection to Kessem. The State Department’s stand in this situation is like that of the Mize/Gregg one. Even though both of Kessem’s fathers are U.S. citizens, Adiel falls one year short of the residency requirement, and the State Department completely disregards Roee as her father.
CASE 2: Injunction upheld by federal courts for prevention of HIV-positive airmen
RICHMOND, Va. — The U.S. Court of Appeals for the Fourth Circuit upheld a lower court ruling in Roe & Voe v. Esper that halted efforts by the Trump administration to discharge members of the Air Force because they are living with HIV. The decision will allow two active-duty Airmen living with HIV, identified pseudonymously as Richard Roe and Victor Voe, to continue serving in the U.S. Air Force as well as preventing the discharge of any other Airmen living with HIV.
The court ruled that the government’s justifications “fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks.” The opinion, written by Judge Wynn and joined by Judge Diaz and Judge Floyd, stated:
“A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks. But any understanding of HIV that could justify this ban is outmoded and at odds with current science. Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgments.”
“I am extremely relieved to learn that I can continue to serve this country like any other service member. Serving in the U.S. military has been the greatest honor of my life and I’m thrilled to see this court affirm the lower court ruling in our favor. No one should be discharged or discriminated against because of HIV when it does not interfere whatsoever with our capacity to serve.” said plaintiff Victor Voe.
In February, the U.S. District Court for the Eastern District of Virginia granted the plaintiffs’ request for a preliminary injunction halting implementation of the administration’s discriminatory discharge policies while the lawsuit proceeded, finding that the Airmen had a likelihood of success on their claims at trial. The Fourth Circuit affirmed that ruling.
“This is the second federal court to find that the Trump administration’s attempt to discharge these individuals is unlikely to pass legal muster,” said Scott Schoettes, counsel and HIV project director at Lambda Legal. “At the root of these discharge decisions and other restrictions on the service of people living with HIV are completely outdated and bigoted ideas about HIV. [The] ruling clears the way for us to definitively prove at trial that a person living with HIV can perform the job of soldier or airman as well and as safely as anyone else. We are confident Roe and Voe will succeed because the Government is unable to offer a reasonable justification for their discriminatory treatment of servicemembers living with HIV.”
The ruling came in the case Roe & Voe v. Esper (formerly Roe & Voe v. Shanahan), filed in December 2018 by Lambda Legal and Modern Military Association of America (MMAA, formerly OutServe-SLDN) with pro-bono co-counsel Winston & Strawn.
“I joined this lawsuit because I feared I would be discharged from the military, but also because of the lingering stigma and many misconceptions about what it is to live with HIV today,” said Roe. “I am very pleased the 4th Circuit decision will allow us to continue serving the country we love.”
“We’re thrilled with the court’s decision upholding the injunction that prevents the Trump-Pence administration from wrongfully discharging these Airmen living with HIV,” said Modern Military Association of America (MMAA) legal and policy director Peter Perkowski. “In light of major advancements in medical treatments, there is no legitimate reason these servicemembers cannot or should not be able to continue to serve their country. It’s past time for the Department of Defense’s outdated policies to catch up with modern science.”
The preliminary injunction was granted in February against the U.S. Department of Defense and the Secretary of the Air Force to halt discharge proceedings against active duty HIV-positive Airmen. In granting the preliminary injunction, the district court not only ruled the plaintiffs were likely to succeed on their claims that they should be retained, but also that the plaintiffs were likely to succeed on their claims that they should be permitted to deploy as well.
The decision on the preliminary injunction comes approximately four months after a three-judge panel of the Fourth Circuit Court of Appeals heard oral arguments from both sides on Sept. 18, in which Geoffrey Eaton, partner at Winston & Strawn LLP, argued on behalf of the plaintiffs. In the argument, judges questioned the Department of Justice lawyers representing the Trump Administrations for more clear answers as to why the Department of Defense believes its policies are justified.
The opinion concluded: “The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s area of responsibility are at odds with modern science. These servicemembers, like other HIV-positive individuals with undetectable viral loads, have no symptoms of HIV. They take daily medication — usually one pill, for some people two — and need a regular, but routine blood test. They cannot transmit the virus through normal daily activities, and their risk of transmitting the virus through battlefield exposure, if the virus can be transmitted at all, is extremely low. Although transmission through blood transfusion is possible, these servicemembers have been ordered not to donate blood. But the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations. As a result, the Air Force denied these servicemembers an individualized determination of their fitness for military service.”
In addition to contesting the unlawful discharges, the lawsuit challenges the Pentagon’s discriminatory deployment policies, which prevent service members living with HIV from deploying to most locations outside the United States. For years, these unjustifiable policies have restricted the opportunities of service members living with HIV. Now the Trump administration and the Air Force are using these same deployment restrictions to justify discharging service members solely based on HIV status.
CASE 3: State sued over policy prohibiting birth certificate corrections for transgender minors
NEW YORK, N.Y. — Lambda Legal filed a federal lawsuit challenging New York State’s policy prohibiting transgender minors from correcting the sex designation on their birth certificates — an important document for transgender people seeking to navigate through life with accurate government documents.
The minor challenging the policy — identified anonymously by his initials M.H.W. — is a 14-year-old transgender boy born in Ithaca, N.Y., currently residing in Houston, Texas.
“I am a boy. It’s frustrating to see New York State deny me the opportunity to correct my birth certificate, which I need for so many important facets of my life. My birth certificate incorrectly says I’m female, but that’s not who I am and I need the state to correct that error and respect my identity,” said M.H.W., who identifies as a boy and uses he/him pronouns. “I’m a teenager in high school living in Texas. Having an inaccurate birth certificate can cause the disclosure of my transgender status when I enroll in college classes or when I get my driver’s license, and expose me to possible harm.”
“As parents, we only want what is best for our son. Our son is a boy, but New York State refuses to recognize him as such.” said M.H.W’s mother, Jennifer Wingard. “We have been able to update our son’s other identity documents, such as his passport and social security records. So we were shocked when the only remaining roadblock came from New York State.”
“We are afraid that as a result of New York’s policy our son will be exposed to extra scrutiny, humiliation or harassment whenever he has to present his inaccurate and inconsistent birth certificate, such as when he applies for his driver’s license. No person should be forced to identify in a manner inconsistent with who they are,” said M.H.W’s father, Michael Sicinski.
“This is really just wanting for our son the same recognition that any other kid has, that most kids just take for granted, that most parents take for granted,” Sicinski told The Associated Press in a phone interview.
The State’s policy is contrary to that of several other states and jurisdictions that allow transgender minors to correct their birth certificates, including California, Colorado, Connecticut, New Jersey, Massachusetts, Pennsylvania, Washington and New York City.
“By prohibiting transgender minors from correcting their birth certificates, the State of New York is depriving them of an essential government identity document,” said Omar Gonzalez-Pagan, senior attorney at Lambda Legal. “Studies show that having inaccurate identification documents exposes transgender people to discrimination, harassment, and violence. Moreover, transgender minors suffer from higher levels of anxiety, depression and suicide rates when they don’t have a supportive environment. By barring transgender youth from having accurate birth certificates, New York is limiting their opportunity to thrive and grow up knowing they are respected as who they are.”
Lambda Legal filed the lawsuit in the U.S. District Court for the Northern District of New York on behalf of M.H.W., by and through his parents Jennifer Wingard and Michael Sicinski. The court decision, if favorable, could bring forward a policy change statewide.
According to the 2015 U.S. Transgender Survey, almost one-third of transgender people who showed an identity document with a name or gender marker that conflicted with their perceived gender were harassed, denied benefits or services, discriminated against or assaulted. Transgender people also are disproportionately targeted for hate crimes.