As one of the newest U.S. Supreme Court cases deciding a sex-based equal protection challenge, Nguyen v. INS represents a step backwards in constitutional gender jurisprudence. While the Court stated it was applying heightened scrutiny, the decision did not deploy the rigorous analysis of United States v. Virginia in determining whether it was constitutional to require fathers to satisfy more onerous criteria to pass on citizenship to their children born abroad. The opinion casts doubt on whether heightened scrutiny meaningfully confines facial sex discrimination. It also illustrates how the Court's equal protection doctrine traditionally has failed to account for intersecting forms of stereotyping and bias.

BACKGROUND

Following feminist advocacy starting in the 1970s, most federal laws that explicitly discriminated based on sex were struck down as unconstitutional or amended to be gender neutral. The Immigration and Nationality Act, however, contains some of the few remaining provisions that expressly treat men and women differently.

One provision governs the acquisition of U.S. citizenship by a child born outside the country to unmarried parents, only one of whom is a U.S. citizen. When the child is born to an unmarried U.S. citizen father, the father must show the following to transmit U.S. citizenship at birth:

• A blood relationship between the child and the father is established by clear and convincing evidence;

• While the child is under the age of 18 years

1. (a) the child is legitimated under the law of the child's residence;

2. (b) the father acknowledges paternity of the child in writing under oath;

3. (c) the paternity of the child is established by a competent court; or

4. (d) the father is physically present in the United States for five years before the child's birth, at least two of which were after the father turned 14 years of age. In contrast, a U.S. citizen mother need only show that she had U.S. nationality at the time of the child's birth, and that she had been physically present in the United States continuously for one year at any time before the birth.

The U.S. Supreme Court first considered the constitutionality of section 1409(a)(4)'s legitimation requirement in Miller v. Albright, ultimately affirming the dismissal of Lorelyn Penero Miller's petition to acquire citizenship through her U.S. citizen father.