Fisher: Citizenship, Federalism, and Delayed Birth Registration
2024]
C ITIZENSHIP, F EDERALISM, AND DELAYED BIRTH R EGISTRATION
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been used for discrimination and exclusion on the basis of race, parents’
immigration status, and gender. 56 Birth registration assigns individuals
with a race at birth and was used in the Jim Crow era to preserve whiteonly spaces through legally mandated segregation and to enforce bans on
interracial marriage. 57 More recently, U.S. border officials have deported
noncitizen mothers with U.S. citizen newborns before the children were
issued U.S. birth certificates, likely depriving those children of the ability
to prove their U.S. citizenship later in life. 58 The state of Texas denied
birth certificates to children of undocumented individuals for a period
before settling a lawsuit that challenged the practice. 59
Birth registration records the newborn’s sex assigned at birth; in
some states, laws continue to limit the ability of transgender people to
amend their birth certificates to match their identity. 60 But birth
certificates are not inherently permanent: every state’s legal provisions
reissue birth certificates upon the adoption of a child, reflecting the
adoptive parents as the birth parents. 61 State laws vary widely, though, on
56. Appell, supra note 23, at 367 (“the birth certificate performs stealthy work as a creator and
proponent of racial and heterosexual norms through its reifying regulation of sexual identity, gender,
race, family, and citizenship.”).
57. Susan J. Pearson, Birth Registration and the Administration of White Supremacy, 5 MOD.
AM. HIST. 117 (2022); Garrett Epps, How Birth Certificates Are Being Weaponized Against Trans
People, THE ATLANTIC, (June 8, 2018), https://www.theatlantic.com/ideas/archive/2018/06/howbirth-certificates-are-being-weaponized -once-ag ain/562361/
[https://perma.cc/W2CT-GFYT]
(“Under the law, there were two and only two answers: “white” or “colored.” The notation was
important: It would determine whom the individual could marry, where he or she could seek medical
care, and even where he or she could be buried.”). By the same token, notations of race are critical to
establishing a claim to Hawaiian Home Land homestead claims, which provide land to individuals
who can prove at least a 50% native Hawaiian blood quantum. DEP’T OF HAWAIIAN HOME LANDS,
APPLYING FOR HAWAIIAN HOME LANDS, https://dhhl.hawaii.gov/applications/applying-forhawaiian-home-lands/ [https://perma.cc/AZ77-V9LM] (last visited on Apr. 29, 2023).
58. Tanvi Misra, Revealed: US Citizen Newborns Sent to Mexico under Trump-Era Border Ban,
THE GUARDIAN, (Feb. 5, 2021), https://www.theguardian.com/us-news/2021/feb/05/us-citizen newborns-mexico-migrant-women-border-ban [https://perma.cc/37EJ-GGSC].
59. Alexa Ura, Texas Agrees to Resolve Birth Certificate Case With Undocumented Families,
TX. TRIB., (July 25, 2016), https://www.texastribune.org/2016/07/25/texas-agrees-to-resolve-birt h certificate-case/ [https://perma.cc/3LEV-F7GE] (noting that the child’s birth certificates); Manny
Fernandez, “Immigrants Fight Texas’ Birth Certificate Rules”, N.Y. TIMES, (Sept. 17, 2015),
https://www.nytimes.com/2015/09/18/us/illegal-immigrant-birth-certificates.html
[https://perma.cc/6SKU-9PYY] (noting that hundreds of undocumented families in Texas were
unable to register their child’s births); Elisa Carino, Made in America: How Birth Certificate
Applications Infringe on the Right to Citizenship, 43 N.Y.U. L. R EV. & S OC. C HANGE 225 (2019);
Anna Laura Lichtenberger, Undocumented Citizens of the United States: The Repercussions of
Denying Birth Certificates, 49 S T. MARY’S L.J. 435, 438-39 (2018).
60. Epps, supra note 58.
61. Gregory D. Luce, FAQ: Original Birth Certificates, ADOPTEE R IGHTS LAW C ENTER PLLC
(last visited June 11, 2023), https://adopteerightslaw.com/faq-obc [https://perma.cc/7DJ4-59Z5].
Published by IdeaExchange@UAkron, 2025
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