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The State We’re In: Sex discriminatory nationality laws in the Americas region

Our updated report found that there are six countries in the Americas region with nationality laws that discriminate on the basis of sex: The Bahamas, Barbados, Guatemala, Saint Lucia, Saint Vincent & the Grenadines, and the United States. The discriminatory laws still in place in those countries continue to harm women and their families in very concrete ways, and hurt society as a whole by perpetuating patriarchal norms and views.

Impact on women and their families

Too many discriminatory nationality laws remain founded on gender stereotypes, both in the family and the household and in the public sphere, which in turn reinforce stereotypical roles for both women and men. 

For example, there is the attitude that a child “belongs” to a father rather than a mother, including in adoption cases – his nationality therefore is more likely to attach to the children, even if they live in the mother’s (different) home country. The exception to this is when the couple is not married, when some laws (such as the United States’ Immigration and Nationality Act) encapsulate the view that mothers will raise their children and fathers are, and are entitled to remain, irresponsible – but that view is just as harmful to women and their families. Some countries have explicit provisions in their laws which do not permit adoptive mothers to pass nationality to their adopted children on an equal basis with adoptive fathers. In the Americas, this includes The Bahamas and Barbados.

Discriminatory nationality laws in the Americas don’t only apply to parent-child relationthips; they affect women’s ability to pass their nationality to their spouses as well. No special provisions apply which allow married women to pass nationality to foreign spouses (though they apply for married men) in The Bahamas, Barbados, and Guatemala. In Saint Lucia, and Saint Vincent & the Grenadines, it’s possible for wives to pass nationality to non-national husbands, but only subject to a proviso that a government Minister can refuse on reasonable grounds (which does not apply to men wishing to pass nationality to their spouses).

Denying women the right to pass nationality to children and spouses exposes families to the risk of statelessness, fear of deportation of children and spouses and family separation, and lack of access to publicly funded education, medical services, and social benefits.

Progress: baby steps

A couple of countries have taken important positive steps:

  • The Supreme Court of The Bahamas, in a decision issued in 2020, positively interpreted Article 14 of the Constitution to uphold the right of Bahamian men to pass nationality to their children, regardless of whether they are married to the biological mother or not. This decision could positively benefit children of Bahamian men born outside the marriage of the biological parents or outside marriage altogether. Unfortunately, however, as of March 2022, the Government continues to appeal this decision.
  • On 12 June 2017, the United States Supreme Court handed down a ruling in Sessions v. Morales-Santana (formerly Lynch v. Morales-Santana) to address the sex discrimination in the Immigration and Nationality Act. 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. Written by Ruth Bader Ginsburg, this decision is consistent with international law and jurisprudence, which Equality Now and our global partners highlighted in our ‘friend of the court (amici curiae) brief’. While it is unfortunate that the sex discriminatory financial support requirement for a father remains as a condition for him giving his citizenship to a child born abroad and out of wedlock (this was not an issue in Session v. Morales-Santana), overall, the ruling represents real progress for both women and men in the movement for gender equality.
  • Until 2021, the United States did not grant citizenship to children born abroad, even when the parents were married, unless there was proof of genetic or gestational relationship between the child and an American parent. This policy, which affected many same-sex couples, was reversed by the State Department in 2021, to take into “account the realities of modern families”, allowing married parents (at least one of whom is American) to pass citizenship to children born abroad as long as one of the parents (whether the surrogate or the adopting parent(s)) has a genetic or gestational link to the child.

An ecosystem approach: constitutional equality would change everything

An ecosystem approach to nationality rights, and legal equality generally, is essential, starting with guaranteeing and enforcing constitutional equality. For example, if the United States had the Equal Rights Amendment (ERA) in its constitution, US sex discriminatory nationality provisions based on residency might well have been struck down earlier. 

Other nationality provisions based on and feeding into gender stereotypes which are still in place in the US could be struck down under an Equal Rights Amendment. And several countries continue to have contradictory nationality provisions in their nationality or citizenship acts which must be harmonized with either citizenship and/or equality provisions in their constitutions. Other laws, regulations and procedures affecting nationality rights that must be scrutinized and put in place include birth and marriage registration, among others.

As the US prepares to celebrate Women’s Equality Day on August 26th, and as the world begins to build back from the COVID-19 pandemic, we hope governments will find new inspiration to undertake all necessary legal reforms so that all women and men can enjoy equal nationality rights and participate as full citizens, at all levels of society. Read more about our recommendations.