No child should be denied her rights because her parents are LGBTIQ+, and no family should have to endure the indignity we did. These are the words of Roee and Adiel Kiviti, a same-sex married couple who recently won a legal challenge against the US Department of State for refusing to consider their daughter an American citizen.
Both men are US citizens, but their daughter was born in Canada through surrogacy. The State Department considers such children of same-sex couples to be “born out of wedlock”, irrespective of the marital status of the parents. For the Kivitis, this meant their daughter was denied the automatic citizenship normally granted to the children of US citizens.
This isn’t just a singular case. For many children born to same-sex couples through international surrogacy, there is a risk they could become stateless — unable to gain citizenship in the country where they were born, or their parents’ home countries.
Immigration Equality, an LGBTIQ+ immigrant rights organisation in the US, says there is a new double standard for citizenship: one for the children of gay couples and one for the children of straight couples.
What does statelessness mean?
Statelessness is defined under international law as not being recognised as a citizen by any of the world’s 195 recognised states. According to the UN’s conservative estimate, there are some 12 million stateless people globally.
In practical terms, stateless people face many challenges due to their lack of citizenship. While these differ significantly from one context to the next, common experiences include the inability to access vital services (such as education and health care), move freely, own property and simply prove one’s identity.
Cases like the Kivitis’ daughter have brought high-profile attention to the risk of statelessness associated with LGBTIQ+ parenting situations.
Similar cases have been compiled by campaigners in Europe, where litigation is also underway.
An Irish-Polish lesbian couple, for instance, gave birth to a daughter through IVF in Spain in 2018. The girl, Sofia, is currently stateless because neither woman’s country will recognise her right to citizenship. Her Spanish citizenship is still pending.
And before international commercial surrogacy arrangements were banned in India and Thailand, the children of many same-sex couples born in these countries were at risk of statelessness.
However, statelessness is also a problem that LGBTIQ+ people themselves may face. My recently published research has identified scores of stateless LGBTIQ+ people around the world.
Stateless LGBTIQ+ people face double marginalisation
Why do we hear so little about their experiences? Indeed, this was the question that motivated me to study the links between statelessness and sexual orientation, gender identity and expression, and sex characteristics (relating to a person’s physical sexual anatomy).
Having worked on statelessness for the last decade, I have attended many conferences with little consideration given to LGBTIQ+ people. In contrast, much research has been conducted on the experiences of LGBTIQ+ refugees and asylum seekers.
As Eliana Rubashkyn, an intersex person from Colombia who experienced years of statelessness before receiving asylum and citizenship in New Zealand, explained to me, “Nobody talks about our case because we are taboo everywhere. Yet it is a chronic violation of human rights.”
My research highlights that stateless LGBTIQ+ people often face a significant double marginalisation. They are discriminated because of their sexuality or gender expression, as well as their lack of documentation.
For example, one stateless queer man in Lebanon described fears of being arrested on grounds of public immorality (a common charge against the LGBTIQ+ community) and lacking the necessary paperwork to establish his identity. While he is not the only stateless person in his family (due to gender discrimination in Lebanese citizenship law), the risks are compounded in his case. “It goes without saying that being stateless can also make any problem I encounter due to my sexual orientation and gender identity much worse. And vice versa.”
While no statistics are available, for some LGBTIQ+ people, discrimination is what caused them to become stateless in the first place.
They can lose their citizenship due to complex laws that do not recognise LGBTIQ+ marriages and relationships across countries. There is also a patchwork of different laws recognising sex and gender transitions, which can be especially problematic for trans and intersex individuals.
This was the case for Rubashkyn, who no longer resembled her passport photo following hormone treatment and became stranded in Hong Kong’s airport six years ago.
Desperate to prevent officials from deporting her back to Colombia, where she had suffered persecution, she ultimately renounced her Colombian citizenship, making herself stateless. She was later resettled in New Zealand and gained citizenship in 2018.
Asylum requests are often denied
Within asylum contexts, research shows both statelessness and LGBTIQ+ situations are often missed or misunderstood during the process of assessing claims for protection.
For instance, one transsexual interviewee from my research explained, “the various intersecting elements of my narrative seemed to confuse the asylum officials who wanted to understand my experience through a singular lens. I tried to explain but they did not appear convinced.”
The lack of attention paid to “rainbow statelessness” in the media and policy debates may further lead governments to question the credibility of statements made by stateless LGBTIQ+ asylum seekers.
This is why it’s critical to bring more attention to the links between statelessness and sexual orientation or gender identity.
Better understanding this intersection is necessary to improve laws and policies that discriminate against LGBTIQ+ people, and sometimes render them, or their children, stateless.
Picture Credit: bianet.org
Thomas McGee, PhD researcher, Peter McMullin Centre on Statelessness, University of Melbourne published this article first on The Conversation. The views expressed are the author’s own.