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Biology v. Sociology: How Traditional Notions of Womanhood Pervade Our Legal System

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December 17, 2012

When a child is born to unmarried parents outside of the United States with one parent being a U.S. citizen and the other not being a U.S. citizen, is it constitutional to have different requirements for said child’s acquisition of citizenship depending on whether the citizen parent is the mother or the father? This question is focal in the 2001 United States Supreme Court case, Ngyuen v. Immigration and Naturalization Service (INS), 533 U.S. 53.

The patriarchy hurts everyone, not just women. Let’s look at a Supreme Court case I studied last year.  I site this case as an example of how the role of women in our society shapes and is, in part, shaped by our legal system. If you aren’t familiar with law or legal language, some of this may get a little wordy, but I included reference information for the case and the statute so you can read more about it if this interests you.

Nguyen was born outside of the United States to Boulais, an American citizen, and a Vietnamese woman out of wedlock. Once son and father moved to the United States, the son became a lawful permanent resident. The son has pleaded guilty to two counts of sexual assault on a child. The INS considered this to be a deportable offense. Nguyen claimed he is a citizen of the United States but his claim was rejected. The Board of Immigration Appeals rejected the constitutional challenge to Title 8 U.S.C. § 1409(a). Title 8 U.S.C. §1409(a) governs the acquisition of United States citizenship by persons born to one United States parent and one noncitizen parent when the parents are unmarried and the child is born outside of the United States or its possessions. However, the statute has different requirements depending on if the mother or father of the child is the citizen parent. The question before the court was whether the different requirements are consistent with the Equal Protection clause guaranteed by the Due Process clause of the 5th Amendment.

The statute at issue in Nguyen imposes different requirements for unmarried fathers and unmarried mothers to transmit U.S. citizenship to children born abroad. An unmarried father could transmit citizenship only if specific steps to establish paternity were taken before the child turned 18; in contrast, a child born to an unmarried citizen mother automatically received the mother’s U.S. citizenship.

On appeal, the Court of Appeals rejected Nguyen and Boulais’ argument that section 1409(a) violates equal protection by providing different rules for attainment of citizenship by children born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or the father. The INS rejects claims that the statue is rooted in sexist beliefs and values. They argue that the statute’s distinction between sexes is not a generalization, but instead a biological fact that undeniably puts the two sexes in different positions in terms of opportunity for meaningful relationship. INS placed emphasis on the mother being inherently present at birth whereas the father is not and assert that the distinction is not based on any historical stereotype or generalization and therefore should not be called as violating the Equal Protection Clause of the Fourteenth Amendment.

The decision of the court in this case was not unanimous; it was split.  Review of the record at the time section 1409 was passed by congress reveals that the actual objective of the INS is to further sexist stereotypes.  Though my personal stance on pretty much anyone who has committed sexual assault or rape is “I hope they get what’s coming to them,” legally, if Nguyen had been a woman and given birth to his son in the United States, his son would be going to United States prison.  The traditional ideas of women’s proper roles in society have, since section 1409 at least, continued to subtly and not so subtly influence our legal system.  Dissenting, or disagreeing (with the majority decision), justices make the argument that the statute not only unfairly discriminates on the basis of gender but also that it is based on traditional and stereotypical notions of what women’s roles should be.

One of the most pervasive and firmly-rooted gender stereotypes in our society is that of the ideal mother.  In my opinion, as well as those of some of the dissenting justices, when our government creates laws based on traditional notions of women’s positions in society, and these laws are upheld in the highest court of law (in the United States), it is more difficult for women to act and be perceived outside of these roles. We see in this case that the court, which prides itself on being just, fair and objective, made its decision based on sociological ideas (assumptions about women as mothers) under the guise of biological differences.

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