99-2071 Tuan Anh Nguyen v. INS

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“[T]o require Congress to speak without reference to the gender of the parent with regard to its objective of ensuring a blood tie between parent and child would be to insist on a hollow neutrality. As JUSTICE STEVENS pointed out in Miller, Congress could have required both mothers and fathers to prove parenthood within 30 days or, for that matter, 18 years, of the child’s birth. 523 U.S., at 436. Given that the mother is always present at birth, but that the father need not be, the facially neutral rule would sometimes require fathers to take additional affirmative steps which would not be required of mothers, whose names will appear on the birth certificate as a result of their presence at the birth, and who will have the benefit of witnesses to the birth to call upon. The issue is not the use of gender specific terms instead of neutral ones. Just as neutral terms can mask discrimination that is unlawful, gender specific terms can mark a permissible distinction. The equal protection question is whether the distinction is lawful. Here, the use of gender specific terms takes into account a biological difference between the parents. The differential treatment is inherent in a sensible statutory scheme, given the unique relationship of the mother to the event of birth.”

Affirmed.

Local Effect:

The Seventh Circuit has not addressed the issue in this case, although it rejected a similar argument concerning 8 U.S.C. 1432(a) in Wedderburn v. I.N.S., 215 F.3d 795 (7th Cir.2000).