How gender affects citizenship of children

Women are too frail to participate in competitive sports.

Women aren't worldly enough to vote.

A woman's place is in the home.

Some long-held stereotypes seem ridiculous when repeated in America in 2001.

And so it was with a sense of great anticipation that a number of women's rights groups helped litigate the case of Tuan Anh Nguyen. They advanced the case with the hope that the US Supreme Court might use its enormous persuasive power to put an end to another stereotype that they saw reflected in federal immigration law - that women are more likely than men to form a loving, nurturing relationship with a child.

Instead, this week, the nation's highest court delivered a far different message - that the US Constitution does not forbid Congress from passing laws based in large part on biological differences between the sexes.

"To fail to acknowledge even our most basic biological differences ... risks making the guarantee of equal protection superficial," writes Justice Anthony Kennedy in a majority opinion joined by Chief Justice William Rehnquist and Justices John Paul Stevens, Antonin Scalia, and Clarence Thomas.

Upholds existing law

The 5-to-4 decision upholds an immigration statute that makes it more difficult for fathers than for mothers to obtain US citizenship for a child born overseas out of wedlock.

US immigration law allows for an immediate grant of citizenship to any child born overseas to an American woman. But children of American men born out of wedlock to a non-American woman may become citizens only if the father takes certain steps to legally acknowledge the child.

In passing the law, Congress considered the potential problem of American servicemen overseas fathering unwanted children who might then demand US citizenship. Congress also considered that childbirth is a more involved process for women than for men and that such involvement can lead to a presumption of a bond between mother and child.

"Principles of equal protection do not require Congress to ignore this reality," Justice Kennedy writes. He says the US government has a strong interest "in ensuring some opportunity for a tie between citizen father and foreign born child which is a reasonable substitute for the opportunity manifest between mother and child at the time of birth."

Women's rights groups see the decision as a setback. "We sincerely hope this decision is an aberration. It is so far outside the established precedents of sex discrimination under the equal protection clause," says Kathy Rodgers, president of NOW Legal Defense and Education Fund.

Others see the case from the perspective of what might have been. It had offered an opportunity for a landmark ruling making clear that federal laws must be based on higher concepts that unify humanity, rather than on mere biological differences that tend to divide it.

In a dissent that offers a blueprint for such a ruling in the future, Justice Sandra Day O'Connor accuses the majority of watering down prior Supreme Court precedents to uphold the immigration law. And she says reliance on sex-based classifications should always be met with the highest degree of skepticism.

"It is, of course, true that the failure to recognize relevant differences is out of line with the command of equal protection," she writes. "But so too do we undermine the promise of equal protection when we try to make our differences carry weight they simply cannot bear."

Facing deportation

At issue in Mr. Nguyen's case was whether he will face deportation under a law requiring that resident aliens in the US who commit serious crimes be returned to their native country after serving their prison sentence.

Nguyen was abandoned by his mother in Vietnam and has lived since age 6 with his American father in Texas. But through an oversight he never became a US citizen.

Nguyen has served eight years in prison for sexual assault on a child. In fighting the deportation, lawyers for Nguyen argued that if he had been born to an American mother in Vietnam, his immigration status could be easily changed at any time to prevent his deportation.

(c) Copyright 2001. The Christian Science Monitor