The United States - The Immigration and Nationality Act - Equality Now
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The United States - The Immigration and Nationality Act

Section 309 of the United States’ Immigration and Nationality Act (8 U.S.C. § 1409) confers citizenship on children of unmarried U.S. citizen fathers and noncitizen mothers born outside the U.S. only if they meet certain requirements, including their father’s guarantee of financial support and longer residency requirements than for U.S. citizen mothers.

  • Country: United States
  • Law status: Discriminatory law in force
  • Law Type: Citizenship
Sex discrimination in personal status laws negatively impacts the ability of women to conduct various aspects of their daily lives. 
The Law:

Section 309 of the United States’ Immigration and Nationality Act (8 U.S.C. § 1409) confers citizenship on children of unmarried U.S. citizen fathers and noncitizen mothers born outside the U.S. only if they meet certain requirements, including their father’s guarantee of financial support.

Section 309. Children born out of wedlock.

(a) The provisions of paragraphs (c), (d), (e), and (g) of section 301 [granting United States citizenship] shall apply as of the date of birth to a person born out of wedlock if -

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person's birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years -
          (A) the person is legitimated under the law of the person's residence or
          domicile,
          (B) the father acknowledges paternity of the person in writing under oath, or
          (C) the paternity of the person is established by adjudication of a competent
          court.

. . .
    (c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth...

Link to full law

Note:

In Sessions v. Morales-Santana 137 S. Ct.1678 (2017), the U.S. Supreme Court held that going forward, unmarried American fathers and mothers will have the same residency requirements in order to pass on citizenship to their children born abroad, although the new length of the residency is still to be determined by Congress. Previously, fathers had to satisfy a longer residency time period than mothers, which the court found unconstitutional. The Court’s opinion written by Ruth Bader Ginsburg states: 

"At the time §1409 was enacted as part of the Nationality Act of 1940 (1940 Act), two once habitual, but now untenable, assumptions pervaded the Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the sole guardian of a nonmarital child."

Unfortunately, parts of Section 309 remain discriminatory as it still confers citizenship on children of unmarried U.S. citizen fathers and noncitizen mothers born outside the U.S. only if they meet certain requirements, including their father’s guarantee of financial support and longer residency requirements than for U.S. citizen mothers.

Although Section 1 of the 14th Amendment to the United States Constitution theoretically provides every person “equal protection of the laws,” the U.S. Constitution does not explicitly prohibit discrimination on the basis of sex. The Equal Rights Amendment (ERA), which prohibits the denial of equality of rights under the law on account of sex was passed by the United States Congress in 1972. However, the ERA is yet to be ratified by the required number of States. With two States recently ratifying the ERA in 2017 and 2018, the ERA is now just one State away from ratification.

Take action to help ratify the ERA here!

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