A same-sex couple in Georgia said in a lawsuit filed Tuesday that the U.S. State Department is unconstitutionally refusing to recognize their daughter’s rightful American citizenship.

The State Department’s policy treats married same-sex couples as if their marriages do not exist and treats them differently from married straight couples in violation of the law and the Constitution, according to the suit filed in federal court in Atlanta. It was filed on behalf of Derek Mize and Jonathan Gregg, whose daughter Simone was born in England in July 2018 via surrogate.

Both men are U.S. citizens and are listed as her parents on the birth certificate. But because only one has a biological connection to her, the lawsuit says, the State Department is treating her as if she was born outside of marriage, triggering additional conditions for the recognition of her citizenship.

A State Department spokesperson declined to comment, citing pending litigation.

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A child born abroad to married U.S. citizens is automatically a U.S. citizen as long as one parent has lived in the U.S., the lawsuit says. But there are additional requirements if the parents are not married or if only one is a U.S. citizen.

Mize was born and raised in Mississippi, while Gregg was born in London to a U.S. citizen mother and British father and was raised in London with dual citizenship.

The couple met in 2014 in New York, where Mize was living. Gregg soon moved to New York so they could be together, and the pair married in 2015. They moved to Georgia in 2017.

A close friend in England agreed to be their surrogate. Mize stayed in England with her for most of the pregnancy, and Gregg joined them for the final five weeks. Both men were present for Simone’s birth in July 2018 — Gregg cut the umbilical cord while Mize held her. They returned to their home in Decatur, just outside Atlanta, in September.

Preparing to file their taxes in March, Mize went to get a Social Security Number for Simone to claim her as a dependent, he said in a phone interview. The Social Security office staff told him they needed a consular record of birth abroad or a U.S. passport for her and that he would need to get that from the U.S. embassy in London.

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The couple brought Simone to London in April, armed with their U.S. passports, their marriage certificate and Simone’s birth certificate. Once the embassy staff realized both parents were men, they started asking invasive questions about how Simone was conceived and who the biological parent was, Mize said. After three hours of questions and waiting, Mize said, the embassy staff said Simone was not eligible for citizenship.

Since she’s the child of two men and not biologically related to both, the State Department treated her as if she was born “out of wedlock,” the lawsuit says. And because Gregg, the biological parent, hadn’t lived in the U.S. for five years prior to Simone’s birth, the State Department determined she’s not a U.S. citizen.

Simone, who has British citizenship through Gregg, was allowed to return to the U.S. in April on a tourist visa. But that visa expires soon, leaving her without legal status here, which Mize says is a terrifying prospect.

The lawsuit was their last resort, he said. It was filed by lawyers with Lambda Legal and Immigration Equality, advocates for LGBTQ rights.

The law presumes that when a child is born to a married couple, both are legal parents, and the State Department routinely makes that assumption for male-female married couples, said Lambda Legal lawyer Karen Loewy. The department’s policy does not apply that same presumption to same-sex couples despite a legal requirement to do so, she said.

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During their three-hour wait at the embassy, Mize and Gregg watched about 20 male-female couples come in, present the same documents they had provided and walk out with passports for their children, Mize said. None of them were asked how the child was conceived and whether they were biologically related, he said.

Having experienced discrimination because of his sexual orientation in the past, Mize said he often wondered during the early months of Simone’s life whether people were judging his family. But by the time they went to the embassy, he said, “I was really starting to believe all that paranoia was unfounded.”

When the embassy staff didn’t recognize his marriage or his parental relationship to his daughter, he said, it all came rushing back.

“In that moment, every anxiety I’ve ever had in my life about being gay and different came into my body and I just wanted to cry,” he said.