When the law of a mother’s country of nationality does not recognise a woman’s right to confer nationality on her children and/or spouse, children may face the risk of statelessness. Likewise, where nationality laws do not guarantee women’s autonomous right to acquire, change or retain their nationality in marriage, girls in the situation of international migration who married under the age of 18 years may face the risk of being stateless, or be confined in abusive marriages out of fear of being stateless. States should take immediate steps to reform nationality laws that discriminate against women by granting equal rights to men and women to confer nationality on their children and spouses and regarding the acquisition, change or retention of their nationality.232 The UN Human Rights Council also has urged states to “take immediate steps to reform nationality laws that discriminate against women by granting equal rights to men and women to confer nationality on their children and spouses and regarding the acquisition, change or retention of their nationality.”233  One of the early leading cases in the movement to reduce gender discrimination in nationality matters was the 1992 judgment of the Botswana Court of Appeal in favour of Unity Dow, a Botswanan woman married to a foreigner. The Court found that the provisions of the Citizenship Act preventing women from transmitting citizenship to their children and spouses were unconstitutional: “It cannot be correct that because the legislature is entitled to lay down the principles of citizenship, it should, in doing so, flout the provisions of the Constitution under which it operates.”234  The Unity Dow case was cited by the African Committee of Experts on the Rights and Welfare of the Child in a case brought against Sudan on behalf of the child of a Sudanese mother and a father who would have been considered South Sudanese by the Sudanese authorities, in which the African Committee of Experts aligned itself with the position of CEDAW and the CEDAW Committee. The African Committee held that a distinction between the automatic attribution of nationality to the child of a Sudanese father and the right to apply for nationality for the child of a Sudanese mother was impermissible discrimination.235 Often, these cases centre on discrimination based on birth in or out of wedlock. Such distinctions have been condemned by courts in three continents:  The European Court of Human Rights dismissed Malta’s arguments that a child’s link with both parents was missing in cases of children born out of wedlock, stating that “the status of an illegitimate child derives from the fact that his or her parents were not married at the time of their child’s birth. It is therefore a distinction based on such a status which the Convention prohibits, unless it is otherwise objectively justified.” 236  In a case ruling unconstitutional the discrimination against unmarried fathers in transmission of nationality to children born outside the country, the U.S. Supreme Court asserted that “discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.”237  The Bahamian Court of Appeal confirmed a lower court judgment that discrimination preventing the children of Bahamian fathers born out of wedlock was unconstitutional, stating that “the clear words of Article 6: ‘either of his parents is a citizen of The Bahamas’ leads inexorably to the conclusion that the intent is to avoid any apparent discriminatory feature in the Constitution, that is to say, both the mother and the father of the child are placed on an equal footing with no regard as to any artificial differentiation of legitimate or illegitimate.”238  The South African Constitutional Court similarly stated in a case concerning different requirements for birth registration that “a gender-neutral and marital-neutral approach to the process of registration of a child’s birth enhances substantive equality by abolishing gendered and sexist stereotypes that regard women, and women alone, as responsible for the care of children.”239 Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23, para. 24, https://www.refworld.org/docid/5a12942a2b.html. 232 233 The right to a nationality: women’s equal nationality rights in law and in practice, Resolution of the UN Human Rights Council, A/HRC/RES/32/7, 18 July 2016, https://www.refworld.org/docid/57e910044.html. Attorney-General v. Unity Dow, Court of Appeal, (no 4/91), Judgment of 3 July 1992, BLR 119 (CA) at p.141. See also “The Citizenship Case: The Attorney General of the Republic of Botswana v. Unity Dow, Court Documents, Judgements, Cases and Materials”, Metlhaetsile Women’s Information Centre, 1995. 234 235 ACJPS & PLACE (Benjamin) v. Sudan, supra n 42, para. 33, para. 38, 41. Genovese v. Malta, (application no. 53124/09), European Court of Human Rights, Judgment of 11 October 2011, para. 46, https://hudoc.echr.coe.int/eng?i=001-106785. 236 Jefferson B. Sessions, III, Attorney General, Petitioner v. Luis Ramon Morales-Santana, Supreme Court of the United States, 12 June 2017, p.14, https://www. supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf. 237 The Attorney General v. Shannon Tyreck Rolle et al, Court of Appeal of the Commonwealth of the Bahamas, Case No. 62 of 2020, Judgement 21 June 2021, para. 132, per Jon Isaacs JA, https://www.courtofappeal.org.bs/judgments.php?action=view&judgment=3629. 238 Centre for Child Law v. Director-General Dept of Home Affairs and Others, Case No. CCT101/20 [2021] ZACC 31; 2022 (2) SA 131 (CC), Judgment of 22 September 2021, para. 56, http://hdl.handle.net/20.500.12144/36654. 239 64 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S