Government’s decision to treat two sons differently based on their paternal DNA casts a harsh light on the treatment of LGBT immigrant couples: ‘You’re not fully equal’

Aiden and Ethan Dvash-Banks were born four minutes apart. The twins, now 16 months old, love chasing each other around the house, wear the same clothes and share an obsession with Elmo.

In the eyes of the US government, however, the boys are not equal. Aiden is a citizen – and Ethan is undocumented. The boys’ parents are a married gay couple, and even though they legally share the same two fathers, the government has ruled only one is eligible to be a citizen.

In a new federal lawsuit, the Los Angeles family is challenging a policy that they say discriminates against LGBT people by denying birthright citizenship to the children of gay couples based on blood relationships. The fathers, a US citizen and an Israeli citizen, are both listed on the birth certificates of the twins and legally are the exclusive parents of the boys, who shared a surrogate. But because Ethan has the DNA of the Israeli father and Aiden has the DNA of the US father, the government has denied Ethan.

“The message is that you’re not fully equal. Your family is less than other families,” said Andrew Dvash-Banks, the father with US citizenship, who was born and raised in Los Angeles. “My son has been wronged here by the government. We’re fighting this to protect our son and our family.”

The case has shone a harsh light on the unique hurdles that LGBT immigrant families continue to face, even years after marriage equality became the law of the land in the US.

What the state department decision has done was to basically tear my family apart Elad Dvash-Banks

Andrew and his husband Elad met at a party 10 years ago in Tel Aviv where they were both university students. They were engaged two years later and married in Canada in 2010 when gay marriage was still illegal in the US.

They planned to have children and build a life in California, where Andrew’s family lives, and they eventually conceived the twins using their own sperm and eggs from the same anonymous donor. The twins were born in Canada in 2016 and, according to the lawsuit, both should have been eligible for citizenship since they each had a US citizen parent.

Straight couples in this scenario would have no problem getting applications approved, according to their lawyer, but the US consulate in Toronto asked them invasive questions about how their babies were conceived and eventually told them they needed DNA tests.

In March, they received one large envelope for Aiden, congratulating him on his citizenship and granting him a passport – and a smaller envelope for Ethan, saying he was denied.

“That moment was hard,” said Elad, a 32-year-old nonprofit worker, who has a green card. “What the state department decision has done was to basically tear my family apart.”

Facebook Twitter Pinterest The family’s lawsuit argues it is unconstitutional to deny one of the brothers citizenship, and that the government’s policy is anti-LGBT. Photograph: Gabriel Bouys/AFP/Getty Images

The family of four eventually moved to California anyway, securing a temporary tourist visa for Ethan, which recently expired. The couple has applied for a green card for Ethan, which means he is currently undocumented.

“That is something that keeps us up at night – the safety and wellbeing of our child,” said Andrew, a 37-year-old travel manager.

In addition to the stress, Ethan’s uncertain status has prevented the family from traveling to Tel Aviv so Elad’s parents can meet their grandchildren.

The lawsuit, filed by not-for-profit Immigration Equality, alleges that it was unconstitutional to deny Ethan citizenship and that the policy is anti-LGBT. The government is wrongly citing a rule that is meant to require unwed fathers to prove blood relationships – not married gay parents, according to the complaint.

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“The state department is treating same-sex couples as if they were not married, and they are disenfranchising their children,” said Aaron C Morris, Immigration Equality executive director and the couple’s attorney. “Stripping a child of citizenship is one of the most heinous detriments the government could do to a child simply because his parents are gay, lesbian or bisexual.”

The group has also filed a parallel lawsuit on behalf of another couple – Allison Blixt, a US citizen, and Stefania Zaccari, an Italian citizen. The two met in New York and eventually married and had two sons in London. One, however, was denied US citizenship, because he was carried by Zaccari.

The state department declined to comment.

Morris said the problem began under the Obama administration after marriage equality became law. He said there was no data about the number of families affected, but noted that every married gay couple in this situation is being denied.

Elad and Andrew said they were anxious about having to one day explain to their boys why the government does not treat them equally and why Aiden can run for president, but Ethan can’t.

But Elad said he was hopeful their twins would eventually have the same rights – and that their fight would change the rules for everyone: “We are going to make history.”