US Supreme Court confirms equal gender protection in immigration law but plaintiff deported as less favourable test followed

Sessions v Morales-Santana, 582 U.S Supreme Court (12 June 2017)


The US Supreme Court has held that different citizenship rules for children of unmarried mothers and fathers unlawfully infringes the Fifth Amendment’s guarantee of equal gender protection.


In 2000 Luis Morales-Santana was at risk of deportation from the United States despite him having lived there since he was 13 years old, on the basis that his biological father was 20 days short of the legal requirement that he be physically present in the United States for 5 years after age 14.  

Section 1409(c) of the Immigration and Nationality Act sets out different requirements for children born overseas to unmarried fathers and mothers who are US citizens and have a child with a non-US citizen parent:

  • a child born outside the US to an unmarried US citizen and a non-US citizen mother acquired citizenship at birth if the father was physically present in the United States for “at least five-years prior to the child’s birth”; but
  • a child born outside the US to an unmarried US citizen mother and a non-US citizen father acquired citizenship at birth provided that the mother was physically present in the United States for a continuous period of at least one year at some point prior to the child’s birth.

In 2010, Luis Morales-Santana fought his deportation, claiming that the disparate requirements for unwed fathers and mothers violated the equal protection principle of the Fifth Amendment’s Due Process Clause. The Court of Appeals found in his favour, finding that the law amounted to unconstitutional gender discrimination. The Court applied the standard for mothers (one year requirement) to fathers, effectively granting Luis Morales-Santana citizenship.

The Supreme Court affirmed the first part of the Court of Appeals’ decision, upholding equal protection, and reversed the second part, applying the longer residency requirement to everyone including children of unmarried US-citizen mothers.


The Supreme Court held that the gender distinction under the Immigration and Nationality Act 1952 “violates the equal protection principle” as it bears “unconstitutional favourable treatment” of unmarried mothers, and disadvantages unmarried fathers. Given this, the court held that the current stricter, five-year physical-presence requirement for children born to unmarried US citizen fathers also apply to unmarried US citizen mothers. The remedy withdrew the benefit given to women, and left Mr Morales-Santana without US citizenship.

Equal protection

Justice Ginsburg stated that a law which differentiates on the basis of gender is subject to “heightened scrutiny” according to contemporary societal standards and must serve “important governmental objectives …[that] substantially serve an important governmental interest today”. Ginsburg J affirmed that the court cannot rely on this “overbroad generalisation about different talents, capacities or preferences of males and females” – particularly that unmarried fathers are invariably less qualified and entitled than unmarried mothers to care for their children – as it serves no important governmental interest.

The Government maintained that the distinction serves two important objectives:

  1. ensuring a connection between the child and the United States; and
  2. preventing “statelessness” i.e., possessing no citizenship by any state.

The first objective was based on the Government’s assumption that unmarried fathers need more time to absorb US ideals than unmarried mothers, since mothers were viewed as the “natural guardian” of their children, and fathers were expected to deny “parental responsibility.” Ginsburg J dismissed the idea that unmarried mothers are more likely to take responsibility for their children than unmarried fathers, as this assumption “conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children.” She concurred that these types of gender-based over-generalisations no longer support equal protection principles and could not pass heightened scrutiny.

The second objective was built on the claim that if children of unmarried mothers were denied citizenship, they would be at a greater risk of statelessness. The Government suggested that the differential physical-presence requirements were established to reduce statelessness of foreign-born children. Ginsburg J found that the Government’s risk-of-statelessness concern was “an assumption without foundation”, indicating that the Government failed to show the substantially higher risk to foreign-born children of unmarried mothers.

Appropriate remedy

In deciding the appropriate remedy for an equal protection violation, the court had two choices – to confer more favourable test for unmarried fathers, or to take the benefit away from unmarried mothers. The court acknowledged that this was a decision that Congress should make moving forward. However, in the interim, the five-year residency requirement for unwed fathers was also applied to unwed mothers, until Congress can introduce a uniform law that does not favour or disadvantage any person on the basis of their citizen parent’s gender.


This decision confirms that outdated ideas about gender and parenting cannot be used today to justify undermining equal protection. The line of reasoning advanced by Ginsburg J advances progressive arguments about laws no longer relying on unfounded and outdated social assumptions of gender. However, it doesn’t provide specific relief for Luis Morales-Santana in relation to his deportation.

While Ginsburg J’s comments in relation to sex discrimination in immigration law being based on untenable arguments by modern standards have been welcomed, the Court’s decision to apply the more onerous test for unmarried fathers to unmarried mothers actually disadvantages unmarried mothers. While this remedy is intended to be an interim measure, with a strong indication that Congress should remedy the situation in legislation, there is no guarantee that Congress will implement legislation to address this issue.

Australia has removed parentage requirements which discriminate on the basis of a parent’s gender, but Prime Minister Malcolm Turnbull has recently announced proposed changes to citizenship laws which will create further barriers to acquiring citizenship in Australia. Although it appear that these proposed changes will not pass the senate, the more onerous requirements include an increase the permanent residency requirement from one to four years, a higher level of English language proficiency and a revised citizenship test which have been criticised by multicultural groups. Australia does not have the same substantive human rights protections as other Western democratic countries – such as the United States’ Fifth Amendment – which could be used to challenge future parliamentary overreach under immigration laws on the basis of gender, race, religion or another protected attribute.

The full text of the decision can be read here.

Danijela Pantelic is a PLT student currently on placement at the Human Rights Law Centre.