Comments on the judgment of the US Court of Appeals, as confirmed by the judgment of the US Supreme Court, US v. Ruben Flores-Villar
A recent judgment of the Supreme Court upheld, to the surprise of statelessness experts, a very strange finding of the US Court of Appeals, namely that explicit discrimination on the basis of gender in national law is justified, among others, by the objective to avoid statelessness.
The case revolved around the question of the US citizenship of Mr Flores-Villar, who was born in Mexico, to a Mexican mother and an American father. His parents never married. US Nationality law distinguishes between mothers and fathers in their ability to transmit their US citizenship to their children born out of wedlock on the territory of a foreign state. Fathers need to meet much stricter requirement than mothers. Fathers need to have resided in the US for at least 10 years prior to the child's birth, at least 5 of which after the age of 14, and mothers only need to have resided in the US for 1 year prior to the child's birth. Since the father of Mr. Flores-Villar was 16 at the time of birth of Flores-Villar, it was impossible for him to fulfill the condition of having lived in the US for a least five years after the age of 14.
The US government successfully argued in favour of differential treatment of men and women, by saying that 'avoiding stateless children is an important objective that is substantially furthered by relaxing the residence requirement for women'.[emphasis added] The wording of this argument is very important, because it suggests that were the discrimination to be eliminated, it would not result in men being able to transmit their citizenship to children born abroad more easily. Instead, women would be held to the same strict requirements as men. This would, of course, lead to more cases of statelessness, since fewer American parents would be able to offer US citizenship to their children.
However, with such logic, any gender discrimination laws leading to statelessness can be reinterpreted as actually avoiding statelessness. For example, if a law obliges women, and not men, to renounce their nationality upon marrying a foreigner, it can be said to be avoiding statelessness by relaxing renunciation criteria for men – if men were also obliged to renounce their citizenship, many more cases of statelessness would be created.
Assessment of gender discrimination in nationality law in light of the problem of statelessness should focus on establishing the risks of becoming stateless (or having stateless children) for the disadvantaged group. Illustrating that certain favours extended to a priviledged group result in less statelessness than if such favours were not extended does not make gender discrimination justifiable.
Another aspect of this discriminatory law that was not clarified in the judgment is why men, and not women, are being discriminated against? Why do women need greater opportunity to pass on their nationality to children born abroad in order to avoid statelessness? In fact, there are many states that continue to adhere to a patrilineal jus sanguinis regime, which assumes that a child inherits the nationality of the father. If a child is born on the territory of such a state, or if the mother is a national of such a state, enabling men to transmit their citizenship is much more important for the purposes of avoiding statelessness.
The Court does not explain why statelessness is better avoided by favouring women. Instead, it endorses the US government's arguments involving archaic sexist perceptions of parenthood. Mothers were judged to have a better chance to establish a relationship with their child, because they inevitably meet their child at least once, i.e. during the birth. Mr. Flores-Villar, who was brought up by his father, suggested that the factual parent-child bond should be taken into account, but the Court disagreed. Why should we bother with the "subjectivity, intrusiveness, and difficulties of proof" related to the establishment of the factual parent-child relationship, when there is an "easily administered scheme" of biologically-based stereoypes to rely on?
And what about the discriminating attitude of the judgment (and of the US Nationality Law) towards children born out of wedlock? According to the legal provision at stake, they are obviously at a higher risk of becoming stateless than children born in a marriage, even if they are brought up by both parents. This question was not even touched upon in the judgment.
The way in which the US Court of Appeals used the argument of avoiding statelessness in this judgment is surprising. The fact that this reasoning was upheld by the US Supreme Court is disturbing. The only consolation is that the Supreme Court was divided, four judges against four, which indicates that not all judges in the Supreme Court misunderstand so deeply the relationship between gender discrimination and statelessness.
Katja Swider, Researcher/Advisor, Statelessness Programme