Pictured above: Andrew (L) and Elad Dvash-Banks (R) with their sons and dog.
Elad Dvash-Banks isn’t sure if his husband would want him to tell this story. When Elad met Andrew, an American student studying abroad in Tel Aviv, in 2008, the two were attending a Halloween party at their college. Elad, an Israeli native, went as a cowboy, while Andrew was dressed as a blue fairy.
But as the two got to know each other better, Elad claims it wasn’t the “big blue wings” that made him realize this was the person he’d spend the rest of his life with. He knows it sounds like he’s narrativizing their meet-cute, but Elad recalls that he was immediately drawn to Andrew’s tenacity. He doesn’t give up “for what is right and what he deserves,” Elad explains.
His husband’s indomitable spirit would repeatedly be put to the test throughout the course of their relationship. The couple was married in 2010, three years before the repeal of the Defense of Marriage Act (DOMA). Because the United States didn’t recognize their relationship at the time, the two were forced to start a life together in Canada. A year after the Supreme Court ruled marriage equality legal across the U.S., the two gave birth to twins, Ethan and Aidan, conceived through a surrogate, with the expectation they would be granted citizenship.
The day they went to the American consulate to apply for a U.S. passport for their sons, Elad remembers it was a “cold day in Toronto.” He adds, “We had to wait with a baby stroller for twins outside before they let us into the building.”
The inside of the building wasn’t much warmer. Like a surreal version of a daytime talk show, an official with the consulate began asking the couple invasive questions about their children’s paternity: How were they conceived? Who is the father? At that time, no one knew the answer but Elad and Andrew. They used a different sperm for each egg—Elad’s for Ethan, and Andrew’s for Aiden.
Because Ethan isn’t Andrew’s biological son, he was denied citizenship. The couple would later receive two envelopes in the mail: a smaller one containing Aiden’s passport, and a much larger one containing an explanation the U.S. government’s birthright policy.
“It was a massive blow,” Elad says of the denial letter. “We started fighting it immediately.”
Even after a California district court ruled in February that the policy unfairly discriminates against same-sex families, the couple’s fight isn’t over. At 6pm ET on the last possible day to file an appeal, the State Department announced plans to seek a reversal of the ruling. The case will soon be headed for the U.S. Court of Appeals for the Ninth Circuit, although it could be another year before the bench is prepared to hear oral arguments.
Elad claims they were “shocked and disappointed” to learn the Trump administration is appealing the historic court victory. As a condition of that ruling, U.S. District Judge John F. Walter ordered the State Department to issue Ethan a passport, and until this week, he was living peacefully with his family in Los Angeles.
Since the intent to appeal was filed Monday, Elad says their family has had lots of “sleepless nights.”
“Every night when we go to sleep, we think about what could happen,” he claims. “We’ve seen this government do crazy things when it comes to immigration and anti-LGBTQ policy. We are scared.”
Their attorneys believe the law is on the couple’s side. Aaron Morris, the executive director of Immigration Equality, says the Immigration and Nationality Act of 1965 doesn’t require a “biological connection” between parents and offspring to determine U.S. citizenship. In fact, Morris says the Trump administration’s desire to use the law to break apart same-sex families is contrary to its original intention when it was passed by Congress five decades ago.
“The purpose of the law was to keep families together,” he tells NewNowNext.
Spencer Tilger, the public affairs manager for Immigration Equality, claims Judge John F. Walter said as much in his February ruling. He claimed the State Department’s interpretation of the Immigration and Nationality Act is “strained.”
“Their policy is based on the laws that Congress has created, but they’re misinterpreting the law,” Tilger tells NewNowNext. “We can’t say exactly why they’re so set on this interpretation, but it’s clear that the impact of this law is discriminatory toward LGBTQ families. When a same-sex couple goes to a consulate [to register their child for U.S. citizenship], they’re always going to be asked about how they conceived the child. A married different-sex couple is never going to be asked that question.”
The Trump administration has declined to comment on the appeal. In response to media requests, it has directed reporters to language on the State Department website doubling down on its interpretation of standing immigration policy. The webpage states that “a child born abroad must be biologically related to a U.S. citizen parent.”
“A U.S. citizen father must be the genetic parent of the child and meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth,” it adds, noting that DNA testing may be required to determine parentage.
Immigration Equality notes that Elad and Andrew aren’t the only same-sex couple who has been impacted by the policy. In a case pending before the U.S. District Court for the District of Columbia, Alison Blixt and Stefania Zaccari claim their son, Lucas, was denied U.S. citizenship because Stefania was the parent who carried him to term. Although Alison was born in the state of Illinois, Stefania is Italian.
According to the lawsuit, Lucas is the sole “member of his family without the freedom to live in the U.S. permanently.”
“The State Department’s decision to withhold from Lucas the same rights granted to his brother means that he will experience the indignity and stigma of unequal treatment imposed and endorsed by the U.S. government,” claims a complaint filed by Immigration Equality in January 2018.
Morris says Immigration Equality has meetings in the next week with two more binational families that face discrimination from the Trump administration. They will continue getting these calls as long as the policy exists, he adds.
“New families that don’t know about it are going to be affected in the future as well,” Morris claims.
Although Elad claims his sons are too young to be aware of what’s happening, Ethan saw a picture of himself in the newspaper the other day. Even at just two-and-a-half years old, the boy knows “something is going on,” his father claims. The couple has begun documenting as much as they can—that way when the boys are old enough to fully understand the situation, they will know how hard their parents fought for Ethan and fought to keep their family from being torn apart.
What’s more, Elad wants their parents’ example instills in Ethan and Aiden the very quality that initially drew him to his husband at that fateful costume party many moons ago. “They need to be fighters and maybe one day fight for their kids,” he claims before adding: “But hopefully not.”