LOS ANGELES, California -- Ethan and Aiden Dvash-Banks are toddler twins who share almost everything: the same toys, the same nursery, the clothes and the same parents. Everything but a toothbrush and U.S. citizenship.
To remedy what their parents, a gay married couple, view as an injustice, Ethan Dvash-Banks became a plaintiff at the tender age of 16 months in a federal lawsuit against the U.S. State Department that seeks the same rights his brother has as a citizen.
"What we're trying to do is pursue justice for Ethan," said Elad Dvash-Banks, his biological dad, "and correct a wrong that the State Department is continuing to pursue that might affect other couples."
The lawsuit was one of two filed Monday by an LGBTQ immigrant rights group that said the State Department is discriminating against same-sex bi-national couples by denying their children citizenship at birth. The cases filed in Los Angeles and Washington by Immigration Equality said the children of a U.S. citizen who marries abroad are entitled to U.S. citizenship at birth no matter where they are born and even if the other parent is a foreigner.
The State Department said it doesn't comment on pending litigation, but pointed to guidance on its website that says a father who is a U.S. citizen must be the genetic parent for the child to become a U.S. citizen at birth.
Aaron Morris, executive director of Immigration Equality, said the State Department is wrongly interpreting a policy for children born out of wedlock to married same-sex couples.
"If a mother and father walk into a consulate and have a marriage certificate and birth certificate, they're never asked any questions about the biology of the child," said Aaron Morris, executive director of Immigration Equality. "But the converse is also true and every same-sex couple will be asked that."
The other case filed Monday involves two women, one from the U.S., and one from Italy, who met in New York, wed in London and each gave birth to a son. The State Department didn't recognize the couple's marriage, the lawsuit said, and only recognized the citizenship of the mother who was born and raised in the U.S.
Andrew Dvash-Banks was studying in Israel when he met his future husband, Elad, an Israeli citizen. Because they couldn't marry at the time in the U.S. or in Israel, they moved to Canada, where they wed in 2010. Each boy was conceived with donor eggs and the sperm from a different father, but born by the same surrogate mother minutes apart in September 2016.
Everything seemed fine until the couple brought their cranky infants to the American consulate in Toronto a few months later to apply for citizenship and the woman at the counter began asking probing questions they found shocking and humiliating.
She told them she had discretion to require a DNA test to show who the biological father was of each boy and without those tests neither son would get citizenship,. The men knew that Andrew was Aiden's biological father and Elad was Ethan's but they hadn't planned on telling anyone.
"I started crying," Andrew Dvash-Banks said. "These are twins, how can you differentiate between them? They were born minutes apart."
After submitting the DNA test results, the couple received two envelopes from the U.S. on the same day March. A large one included Aiden's passport inside. The other was just a letter notifying Andrew that Ethan's application had been denied.
Gay couple suing after 1 twin son denied U.S. citizenship