I'm in vacation mode, so I'm late in blogging about last Monday's US Supreme Court ruling in Hillman v. Maretta, which I wrote about here when it was argued. (Refer to that post for all the facts and arguments on both sides.)
The Court has unanimously affirmed the Virginia Supreme Court's holding that federal law preempts a state statute allowing a current spouse to recover a deceased federal worker's life insurance proceeds from a designated beneficiary who was the worker's ex-spouse. Although I found good policy arguments on both sides, this was the result I wanted. The Court found that the intent of the federal life insurance program was to pay the proceeds to whoever an employee choses. (The employee can change his or her beneficiary at any time and this information is conveyed to employees.) Any state law frustrating that purpose is preempted, and that's what the Virginia statute at issue did. Maybe Hillman intended to revoke his ex-wife when they got divorced (which was 10 years before he died), but he never did that. The designation governs, so she gets the money, and Virginia can't circumvent the federal statute by allowing Hillman's widow to sue the ex-wife for the proceeds.
This is a victory for allowing an employee to decide who should get financial compensation when he or she dies. I like this. An employee can pick an umarried partner (same- or different-sex) without fear that his or her parents will claim to be next of kin and entitled to the money.
When an employee does not choose there is a listed order of precedence, with a widow or widower at the top. This is what we would expect in our legal system. But I think that's the wrong choice. The top should be reserved for minor children. When Congress first wrote these laws the divorce rate was much lower and there were fewer nonmarital births. An employee's minor children probably lived with his (more likely to be his then) widow. Now, when an employee does not designate a beneficiary, the proceeds go to the widow/widower, even if the employee's minor children are being raised by an ex-spouse.
Minor children can't take care of themselves. Adults (including the widow or widower) usually can. The first order of precedence, therefore, should be those children. This is the "beyond marriage" approach.
Showing posts with label employee benefits. Show all posts
Showing posts with label employee benefits. Show all posts
Saturday, June 8, 2013
Monday, May 6, 2013
US Supreme Court will rule on this: Who gets a deceased federal employee's life insurance proceeds, his wife or his designated beneficiary, who happened to be a long-ago divorced ex-wife?
I was plenty busy with the same-sex marriage cases and the Indian Child Welfare Act case, so I'm just now catching up on another case the Supreme Court will resolve by the end of June. It's Hillman v. Maretta, a case raising some very interesting questions, which was argued last month on the last day of this Term.
The facts are simple. Warren Hillman worked for the federal government. In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy. This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002. He was still married to that wife, Jacqueline Hillman, when he died in 2008.
Warren Hillman never changed his beneficiary. Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta. At this point Virginia state law kicked in. Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce. Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit. Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.
Virginia law cannot trump federal law because of the doctrine of preemption. So federal life insurance proceeds still go to whoever is designated by the employee. No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to. But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her. That's the law being challenged in this case.
The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered. It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents. She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money. But nonmilitary federal life insurance doesn't have that same provision. So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.
Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary. She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse. Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else. If the order is filed with the plan administrator before the employee dies then the plan pays according to the order. (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.) The federal government agrees with Maretta.
Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing. If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents. Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.
But. On the other hand, we want a person's real intent to govern. When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage. Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.
The federal government doesn't care at all about intent. It wants the plan administration to be simple. Look at the forms. See whose name is there. Pay the benefit. That is the very definition of simple. Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.
The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations. If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.
So I'm back and forth on this one. Ultimately, however, I come down on Maretta's side. Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends). Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.
The facts are simple. Warren Hillman worked for the federal government. In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy. This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002. He was still married to that wife, Jacqueline Hillman, when he died in 2008.
Warren Hillman never changed his beneficiary. Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta. At this point Virginia state law kicked in. Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce. Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit. Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.
Virginia law cannot trump federal law because of the doctrine of preemption. So federal life insurance proceeds still go to whoever is designated by the employee. No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to. But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her. That's the law being challenged in this case.
The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered. It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents. She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money. But nonmilitary federal life insurance doesn't have that same provision. So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.
Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary. She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse. Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else. If the order is filed with the plan administrator before the employee dies then the plan pays according to the order. (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.) The federal government agrees with Maretta.
Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing. If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents. Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.
But. On the other hand, we want a person's real intent to govern. When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage. Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.
The federal government doesn't care at all about intent. It wants the plan administration to be simple. Look at the forms. See whose name is there. Pay the benefit. That is the very definition of simple. Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.
The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations. If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.
So I'm back and forth on this one. Ultimately, however, I come down on Maretta's side. Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends). Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.
Friday, May 25, 2012
Winning marriage and losing domestic partnership benefits: check out this NY event
I'm in the middle of writing an article about a case from Westchester County, NY, in which a teacher, Kathe McBride, sued the school district for which she worked when it instituted domestic partner employee benefits for same-sex partners only. She wanted benefits for the man she had lived with for over 30 years. The Westchester County Human Rights Commission agreed that this amounted to discrimination on the basis of sexual orientation and marital status. A New York appeals court disagreed, and before the highest court in New York could hear the case, the parties settled.
But here's the other part of that story. Effective July 24, 2011, the day same-sex couples achieved the right to marry in New York, McBride's employer ended DP benefits entirely. Now the 7000+ employees must marry or forego the ability to extend the economic and emotional security of adequate health care to their partners.
Once upon a time, back when domestic partner employee benefits started at the Village Voice in 1982, they were for gay and straight couples alike and demonstrated respect for the choice not to marry -- a choice that no one's health care should depend upon. They were about family diversity. A decade later, some employers started covering same-sex partners only, reasoning that it was a gay rights issue because gay couples could not marry. Those employers had no problem with requiring straight couples to marry.
On June 4, an event in New York will examine how far we've come...for better and for worse...from the days when domestic partnership benefits were about making marriage matter less. The Ettelbrick Project for LGBTQ Family Recognition at the Stonewall Community Foundation is presenting a program, "The Day Domestic Partnership Dies: Rolling Back Family Reform." Paula Ettlebrick spent her entire career supporting equality and justice, which means she always argued that marriage should not be gatekeeper to family recognition. Terry Boggis serves Paula's memory well with this special Pride month program. I hope it gets a large audience and lots of press coverage.
But here's the other part of that story. Effective July 24, 2011, the day same-sex couples achieved the right to marry in New York, McBride's employer ended DP benefits entirely. Now the 7000+ employees must marry or forego the ability to extend the economic and emotional security of adequate health care to their partners.
Once upon a time, back when domestic partner employee benefits started at the Village Voice in 1982, they were for gay and straight couples alike and demonstrated respect for the choice not to marry -- a choice that no one's health care should depend upon. They were about family diversity. A decade later, some employers started covering same-sex partners only, reasoning that it was a gay rights issue because gay couples could not marry. Those employers had no problem with requiring straight couples to marry.
On June 4, an event in New York will examine how far we've come...for better and for worse...from the days when domestic partnership benefits were about making marriage matter less. The Ettelbrick Project for LGBTQ Family Recognition at the Stonewall Community Foundation is presenting a program, "The Day Domestic Partnership Dies: Rolling Back Family Reform." Paula Ettlebrick spent her entire career supporting equality and justice, which means she always argued that marriage should not be gatekeeper to family recognition. Terry Boggis serves Paula's memory well with this special Pride month program. I hope it gets a large audience and lots of press coverage.
Monday, April 9, 2012
Ninth Circuit refuses to rehear Diaz v. Brewer en banc. Is this case heading to the US Supreme Court?
Last week the Ninth Circuit denied Arizona's petition for rehearing en banc in Diaz v. Brewer. I have written about what I dislike about this case. In short, Arizona state employees had domestic partner health benefits for same- and different-sex partners, something made possible only because Arizona defeated a "super-DOMA" in 2006. The super-DOMA would have prohibited state recognition of not only same-sex marriage but rights for unmarried partners. Different-sex couples featured prominently in the campaign to defeat the super-DOMA. Then, in 2009, when the state revoked the benefits, Lambda Legal sued to block the rescission but only on behalf of workers with same-sex partners, effectively abandoning the constituency that made it possible for the gay employees to have the benefits in the first place.
The plaintiffs won in both the District Court and the Ninth Circuit, and it's the Ninth Circuit win that remains intact now that the Court will not hear it en banc. The panel ruled on Equal Protection grounds that there was discrimination against gay and lesbian employees and that the state could not justify the discrimination on the grounds of cost because there were so few same-sex couples taking advantage of the benefits. I'm writing a longer article now with my critique of Lambda's decision to abandon different-sex couples. Lambda has framed the case as seeking for gay employees what straight employees already have. They do this by asserting that since straight couples can marry they have lost nothing by losing domestic partner benefits. I do not support this dismissive and disrespectful characterization of unmarried different-sex couples. The movement I want to be a part of does not make marriage mandatory for different-sex OR same-sex couples, yet that's the upshot of the Lambda argument. All the gay plaintiffs swore that they would marry their partners if Arizona law allowed it. Presumably this means that those who did not want to marry could not be plaintiffs in this case. For a movement whose origins rest squarely with a commitment to family diversity, this amounts to abandoning a constituency of gay families and relationships that do not put themselves within the mold of marriage. If this is what equality gets us, it comes at the cost to the liberty and justice that used to animated discussions of LGBT families and relationships.
So the courts found the discrimination to exist against gay employees only precisely because different-sex couples can marry. At this posture, what's left for Arizona is to file for cert in the US Supreme Court. This case has received almost no media attention, and certainly nothing compared with that of Perry v. Brown, challenging California's Prop 8, or even the Gill case argued so ably by Mary Bonauto in the First Circuit Court of Appeals last week. The latter case concerns the constitutionality of the part of DOMA that denies federal recognition to legally married same-sex couples.
But Diaz is closer to US Supreme Court review than either of those cases. With this denial of en banc review, the case is ripe for a cert petition. The case places squarely before the Court whether a state that does not allow same-sex couples to marry may differentiate between same-sex couples and married heterosexual couples. Thus, it is a case with huge implications for anti-discrimination law. If the Supreme Court were to hear it, gay rights advocates would assert, in the highest court in the land, that it's fine for states to prefer married couples over unmarried couples, in fact that marriage is great and states can promote it; they just have to let same-sex couples who can't marry have access to the same benefits. No surprise to my steady readers that I hate this argument. There are a lot of LGBT folks who hate it too, but their voices aren't heard too loudly these days.
The plaintiffs won in both the District Court and the Ninth Circuit, and it's the Ninth Circuit win that remains intact now that the Court will not hear it en banc. The panel ruled on Equal Protection grounds that there was discrimination against gay and lesbian employees and that the state could not justify the discrimination on the grounds of cost because there were so few same-sex couples taking advantage of the benefits. I'm writing a longer article now with my critique of Lambda's decision to abandon different-sex couples. Lambda has framed the case as seeking for gay employees what straight employees already have. They do this by asserting that since straight couples can marry they have lost nothing by losing domestic partner benefits. I do not support this dismissive and disrespectful characterization of unmarried different-sex couples. The movement I want to be a part of does not make marriage mandatory for different-sex OR same-sex couples, yet that's the upshot of the Lambda argument. All the gay plaintiffs swore that they would marry their partners if Arizona law allowed it. Presumably this means that those who did not want to marry could not be plaintiffs in this case. For a movement whose origins rest squarely with a commitment to family diversity, this amounts to abandoning a constituency of gay families and relationships that do not put themselves within the mold of marriage. If this is what equality gets us, it comes at the cost to the liberty and justice that used to animated discussions of LGBT families and relationships.
So the courts found the discrimination to exist against gay employees only precisely because different-sex couples can marry. At this posture, what's left for Arizona is to file for cert in the US Supreme Court. This case has received almost no media attention, and certainly nothing compared with that of Perry v. Brown, challenging California's Prop 8, or even the Gill case argued so ably by Mary Bonauto in the First Circuit Court of Appeals last week. The latter case concerns the constitutionality of the part of DOMA that denies federal recognition to legally married same-sex couples.
But Diaz is closer to US Supreme Court review than either of those cases. With this denial of en banc review, the case is ripe for a cert petition. The case places squarely before the Court whether a state that does not allow same-sex couples to marry may differentiate between same-sex couples and married heterosexual couples. Thus, it is a case with huge implications for anti-discrimination law. If the Supreme Court were to hear it, gay rights advocates would assert, in the highest court in the land, that it's fine for states to prefer married couples over unmarried couples, in fact that marriage is great and states can promote it; they just have to let same-sex couples who can't marry have access to the same benefits. No surprise to my steady readers that I hate this argument. There are a lot of LGBT folks who hate it too, but their voices aren't heard too loudly these days.
Tuesday, April 3, 2012
Male UPS employee Calvin Radtke, and his MTF trans wife, Christine Radtke, are legally married in Minnesota
In 2005, Calvin Radtke and Christine Alisen were married in Minnesota. Calvin works for United Parcel Service, and he added Christine to the health care benefits plan provided by his employer and administered through Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund ("the Fund"). Five years later, when various Fund employees realized that Christine was born a man, the Fund terminated her eligibility for coverage. The Fund took the position that the couple was not legally married because Minnesota does not recognize same-sex marriage and sex as "observed and recorded at the time of birth" determines whether a person is male or female.
Christine filed an action against the Fund in federal district court in Minnesota. (The case is in federal court because the employee benefits are governed by a federal statute -- ERISA -- and such cases are heard in federal court.) On Monday, District Court Judge Michael J. Davis (a Clinton appointee) ruled that Calvin and Christine are legally married and that the Fund erred in dropping Christine from coverage.
Christine participated in the Transgender Program at the Univeristy of Minnesota Medical School in the 1980's. In 2003, she had sex reassignment surgery. In 2005, she obtained a court order changing her name and directing the Wisconsin State Registrar to issue a replacement birth certificate in her new name and gender. Wisconsin did so, and a month later Christine and Calvin married.
In the litigation, the Fund cited court rulings from other states holding that a person's sex is determined at birth. In one of the most nefarious cases, Kantaras v. Kantaras, the Florida appeals court held that Michael Kantaras was not the father of the children his wife conceived through donor insemination because he was not legally married to her at the time of conception since he had been born a woman.
Judge Davis noted that cases from other states were irrelevant. The only issue was whether the couple was married under Minnesota law. Judge Davis concluded that if Christine was female under Minnesota law then she was Calvin's legal spouse. He determined it was inappropriate for the court to "invent" a federal definition of sex based on sex assigned at birth. Rather, he determined it was proper to look at Christine's current birth certificate and official documents issued by Minnesota. Like most states, Minnesota allows a person to change his or her sex on a birth record after sex reassignment surgery. Minnesota does this after a court order or a letter from a doctor that the person "has completed gender reassignment surgery or hormone therapy." (Note that this suggests that surgery is no longer required in Minnesota, something especially important for FTM transgender individuals). Wisconsin does this as well, which is why Christine was able to get a new birth record there.
The Court then noted that "the only logical reason to allow the sex identified on a person's original birth certificate to be amended is to permit that person to actually use the amended certificate to establish his or her legal sex for other purposes, such as obtaining a driver's license, passport, or marriage license." "There is no basis," the Court continued, "to conclude that Minnesota recognizes Plaintiff as female for some purposes -- birth records and driver's licenses, but not for others -- marriage certificates." Thus, Christine is a woman and the Fund was wrong to drop her coverage.
While the case was pending, the Fund actually amended its definition of eligibility to explicitly state that in deciding whether a marriage is between a man and a woman, it will recognize only "the anatomical sex of the individual at the time of birth." Really? The Fund has an independent stake in the resolution of this issue? This is truly an outrage. The Court in this case was not in a position to address the validity of this definition because the Fund had yet to apply it to Christine (and might not). But it might be a matter of time before another individual faces this rule.
Of course if same-sex marriage were recognized the issue of Christine's legal sex would be irrelevant here. But until then cases will continue to occur whose resolution turns on the sex of one spouse. I find the ones concerning parentage, like Kantaras and another case not cited by the Court, In re Marriage of Simmons, from Illinois, especially troubling. In those cases, children lost a parent as a result of the court's refusal to recognize either the marriage or some other basis for determining parentage.
This is an important ruling because it stands in contrast to the many decisions ruling otherwise.
Christine filed an action against the Fund in federal district court in Minnesota. (The case is in federal court because the employee benefits are governed by a federal statute -- ERISA -- and such cases are heard in federal court.) On Monday, District Court Judge Michael J. Davis (a Clinton appointee) ruled that Calvin and Christine are legally married and that the Fund erred in dropping Christine from coverage.
Christine participated in the Transgender Program at the Univeristy of Minnesota Medical School in the 1980's. In 2003, she had sex reassignment surgery. In 2005, she obtained a court order changing her name and directing the Wisconsin State Registrar to issue a replacement birth certificate in her new name and gender. Wisconsin did so, and a month later Christine and Calvin married.
In the litigation, the Fund cited court rulings from other states holding that a person's sex is determined at birth. In one of the most nefarious cases, Kantaras v. Kantaras, the Florida appeals court held that Michael Kantaras was not the father of the children his wife conceived through donor insemination because he was not legally married to her at the time of conception since he had been born a woman.
Judge Davis noted that cases from other states were irrelevant. The only issue was whether the couple was married under Minnesota law. Judge Davis concluded that if Christine was female under Minnesota law then she was Calvin's legal spouse. He determined it was inappropriate for the court to "invent" a federal definition of sex based on sex assigned at birth. Rather, he determined it was proper to look at Christine's current birth certificate and official documents issued by Minnesota. Like most states, Minnesota allows a person to change his or her sex on a birth record after sex reassignment surgery. Minnesota does this after a court order or a letter from a doctor that the person "has completed gender reassignment surgery or hormone therapy." (Note that this suggests that surgery is no longer required in Minnesota, something especially important for FTM transgender individuals). Wisconsin does this as well, which is why Christine was able to get a new birth record there.
The Court then noted that "the only logical reason to allow the sex identified on a person's original birth certificate to be amended is to permit that person to actually use the amended certificate to establish his or her legal sex for other purposes, such as obtaining a driver's license, passport, or marriage license." "There is no basis," the Court continued, "to conclude that Minnesota recognizes Plaintiff as female for some purposes -- birth records and driver's licenses, but not for others -- marriage certificates." Thus, Christine is a woman and the Fund was wrong to drop her coverage.
While the case was pending, the Fund actually amended its definition of eligibility to explicitly state that in deciding whether a marriage is between a man and a woman, it will recognize only "the anatomical sex of the individual at the time of birth." Really? The Fund has an independent stake in the resolution of this issue? This is truly an outrage. The Court in this case was not in a position to address the validity of this definition because the Fund had yet to apply it to Christine (and might not). But it might be a matter of time before another individual faces this rule.
Of course if same-sex marriage were recognized the issue of Christine's legal sex would be irrelevant here. But until then cases will continue to occur whose resolution turns on the sex of one spouse. I find the ones concerning parentage, like Kantaras and another case not cited by the Court, In re Marriage of Simmons, from Illinois, especially troubling. In those cases, children lost a parent as a result of the court's refusal to recognize either the marriage or some other basis for determining parentage.
This is an important ruling because it stands in contrast to the many decisions ruling otherwise.
Tuesday, October 4, 2011
El Paso has inclusive definition of domestic partners; Mayor and council members face recall
I've got a special connection to El Paso, given that my partner and I have a residence across the New Mexico border in Las Cruces. El Paso is our local airport. It's also a city hard hit by the Mexican drug wars across the border in Juarez, something we were following as a local story for years before the national press picked up on it.
Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.
The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.
The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.
Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.
This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)
Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.
The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.
The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.
Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.
This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)
Thursday, July 28, 2011
New government report tells us how many employees can include same AND different-sex domestic partners on their health benefits
This week, the Bureau of Labor Statistics released a report on benefits offered employees in the public and private sphere in March 2011. For the first time, the data include the percentage of employees eligible for health benefits that cover domestic partners. The report includes separate statistics for how many employees can cover same-sex partners and and how many can cover different-sex partners. (The report uses the term "opposite sex." Several years ago some trans folks raised my consciousness about the term "opposite," and ever since I have used "different.")
While a gay rights perspective might be primarily concerned with access for same-sex partners, my "beyond marriage" perspective cares as much about access for different-sex partners. (The report does not include data on employers that offer a "plus one" benefit or access for anyone the employee lives with in an interdependent relationship, something I have written about often).
The big picture: 30% of workers have access to health benefits for a same-sex partner; 25% for a different-sex partner. State and local government employees are more likely than private sector employees to have this benefit. (33% vs 29% for same-sex partners; 28% vs 25% for different-sex partners). The report breaks down availability based on numerous criteria, including type of job, relative wages, geographical area, union and nonunion, and size of workforce.
I specifically looked for where the greatest discrepancy existed based on the sex of the employee's partner. Here are some interesting statistics. Those in unions were much more likely to have access to DP benefits than nonunion employees. But when nonunion employees did have such benefits, 27% could cover a same-sex partners and 23% a different-sex partner. Although 49% of union employees could cover a same-sex partner, only 38% could cover a different-sex partner. Of course 38% is still much higher than that available to nonunion employees, but I find the discrepancy interesting. And it's even higher if one looks only at private sector employees. There, 46% can cover a same-sex partner but only 31% a different-sex partner. Does it mean unions fight harder to cover same-sex partners?
Size of workforce also mattered. Where the workforce was under 100, coverage for same- and different-sex partners was close (18% and 16% respectively). But for workplaces of 500 or more, 49% could cover same-sex partners and only 38% could cover different-sex partners. In the private sphere, the discrepancy was quite large -- 54% compared to 41%. Perhaps the sheer number of heterosexuals who can take advantage of such a benefit is so high in large workplaces that employers resist coverage.
In all instances, there is a smaller discrepancy among public sector employees. When looking at the factor of workforce size, for example, 40% can cover same-sex partners and 34% different-sex partners. In most of the country, public employees were more likely to have DP coverage than private sector employees, but there are some odd anomalies. In the south, private sector employees are significantly more likely to have DP benefits. That's to be expected. But in New England, public sector employees also have less access to DP benefits than their private sector counterparts. I did not expect that.
The big winners? In the Pacific region, 84% of public employees can cover same-sex partners and 82% can cover different-sex partners. There are no percentages anywhere near those for any other region or any other characteristic examined in the report.
While a gay rights perspective might be primarily concerned with access for same-sex partners, my "beyond marriage" perspective cares as much about access for different-sex partners. (The report does not include data on employers that offer a "plus one" benefit or access for anyone the employee lives with in an interdependent relationship, something I have written about often).
The big picture: 30% of workers have access to health benefits for a same-sex partner; 25% for a different-sex partner. State and local government employees are more likely than private sector employees to have this benefit. (33% vs 29% for same-sex partners; 28% vs 25% for different-sex partners). The report breaks down availability based on numerous criteria, including type of job, relative wages, geographical area, union and nonunion, and size of workforce.
I specifically looked for where the greatest discrepancy existed based on the sex of the employee's partner. Here are some interesting statistics. Those in unions were much more likely to have access to DP benefits than nonunion employees. But when nonunion employees did have such benefits, 27% could cover a same-sex partners and 23% a different-sex partner. Although 49% of union employees could cover a same-sex partner, only 38% could cover a different-sex partner. Of course 38% is still much higher than that available to nonunion employees, but I find the discrepancy interesting. And it's even higher if one looks only at private sector employees. There, 46% can cover a same-sex partner but only 31% a different-sex partner. Does it mean unions fight harder to cover same-sex partners?
Size of workforce also mattered. Where the workforce was under 100, coverage for same- and different-sex partners was close (18% and 16% respectively). But for workplaces of 500 or more, 49% could cover same-sex partners and only 38% could cover different-sex partners. In the private sphere, the discrepancy was quite large -- 54% compared to 41%. Perhaps the sheer number of heterosexuals who can take advantage of such a benefit is so high in large workplaces that employers resist coverage.
In all instances, there is a smaller discrepancy among public sector employees. When looking at the factor of workforce size, for example, 40% can cover same-sex partners and 34% different-sex partners. In most of the country, public employees were more likely to have DP coverage than private sector employees, but there are some odd anomalies. In the south, private sector employees are significantly more likely to have DP benefits. That's to be expected. But in New England, public sector employees also have less access to DP benefits than their private sector counterparts. I did not expect that.
The big winners? In the Pacific region, 84% of public employees can cover same-sex partners and 82% can cover different-sex partners. There are no percentages anywhere near those for any other region or any other characteristic examined in the report.
Friday, June 24, 2011
NY Times op-ed weighs in for a "beyond marriage" approach
Columbia Law prof Katherine Franke got a prime placement today in the New York Times for a tempered view of what comes with marriage equality for same-sex couples. The piece is well-timed as everyone watches the cliffhanger in the New York Senate. Among Katherine's excellent points -- that the availability of marriage has made domestic partner benefits disappear and that neither same-sex nor different-sex couples should be forced to marry to provide for the health of their partners. Katherine fears she could be in this position if New York allows same-sex couples to marry.
I had this fear as well, but was thrilled and relieved to discover that my employer, American University, went in the opposite direction. As I wrote about at length in this post last fall, AU switched this year from requiring that different-sex couples marry while providing DP benefits to same-sex couples, to allowing gay and straight employees to provide health care and other benefits to their partners regardless of whether they marry. Marriage or registration as domestic partners permits automatic inclusion in the employee benefits programs; a couple who does neither must meet a perfectly reasonable functional test.
To those who are skeptical about state domestic partner/civil union schemes open to both same-sex and different-sex couples (Nevada, Illinois, Hawaii, in addition to DC), I offer this thought. AU human resources personnel report that the fact that both same- and different-sex partners can register in DC (they can also marry of course) was one factor that led them to equalize the availability to AU employees.
If marriage equality comes to NY, I'll suggest to Katherine Franke that Columbia follow AU's lead.
I had this fear as well, but was thrilled and relieved to discover that my employer, American University, went in the opposite direction. As I wrote about at length in this post last fall, AU switched this year from requiring that different-sex couples marry while providing DP benefits to same-sex couples, to allowing gay and straight employees to provide health care and other benefits to their partners regardless of whether they marry. Marriage or registration as domestic partners permits automatic inclusion in the employee benefits programs; a couple who does neither must meet a perfectly reasonable functional test.
To those who are skeptical about state domestic partner/civil union schemes open to both same-sex and different-sex couples (Nevada, Illinois, Hawaii, in addition to DC), I offer this thought. AU human resources personnel report that the fact that both same- and different-sex partners can register in DC (they can also marry of course) was one factor that led them to equalize the availability to AU employees.
If marriage equality comes to NY, I'll suggest to Katherine Franke that Columbia follow AU's lead.
Tuesday, March 29, 2011
Marquette University to offer domestic partner benefits...to those who register with the state in a registry that is the subject of court challenge.
Going on two years ago, Wisconsin adopted a domestic partner registry in spite of the fact that it has a "super-DOMA" constitutional amendment. Almost immediately, the registry was challenged as unconstitutional, as I wrote about here. Well, the past week has seen two items of related news.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
Wednesday, March 16, 2011
Health benefits for family of Michigan state workers in doubt
Last month I lauded the recently granted "plus one" benefit scheme implemented for 35,000 Michigan state employees. Well, those benefits are in grave danger. The state senate has already overturned the decision to award these benefits. My thanks to the Alternatives to Marriage Project for alerting me to this grave situation. ATMP is urging everyone to contact the Michigan House before it's too late. No one is surprised that Gov. Rick Snyder takes a decidedly different approach than that of his predecessor, Jennifer Granholm. Let's hope he can be stopped.
Monday, February 14, 2011
Ninth Circuit hears case on Arizona domestic partner benefits...but only for same-sex couples who say they would marry
In 2008, by administrative regulation, Arizona made available to state employees health benefits for their domestic partners, defined by at least a year of living together and a set of criteria demonstrating financial interdependence. Same-sex and different-sex partners were eligible. In August 2009, the Arizona legislature rescinded these benefits through a statute limiting state employee health benefits to spouses. Before the rescission could take effect, Lambda Legal challenged the constitutionality of the legislation, but only on behalf of those state employees with same-sex partners. They won in the District Court, and the Ninth Circuit Court of Appeals hears the state's appeal today, in the case of Collins v Brewer.
This case really bothers me. In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits. Two years laters, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.
Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.
The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either. I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.
It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union/ domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.
The press will likely report this case the way Lambda is portraying it...as an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.
This case really bothers me. In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits. Two years laters, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.
Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.
The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either. I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.
It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union/ domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.
The press will likely report this case the way Lambda is portraying it...as an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.
Tuesday, February 1, 2011
35,000 Michigan state employees to gain "plus one" health benefits
Almost three years ago, the Michigan Supreme Court ruled that granting health benefits to same-sex domestic partners of government employees was a violation of the state's "defense of marriage" constitutional amendment approved by the voters in 2004.
Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year.
The University of Michigan responded to the state supreme court's ruling by extending benefits to Otherwise Qualified Adults (OQA), anyone who has lived with the employee for more than six months, not as an employee or a tenant. The individual also cannot be a relative. Children of an OQA are also eligible for coverage. I have not seen the exact language approved by the Commission, so I don't know if it also excludes relatives.
I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.
I have long criticized domestic partner benefits for same-sex couples only. Now different-sex couples in Michigan will be equally eligible for benefits. It's taken a long time, but it looks like Michigan will have a better policy than the one struck down by the court.
As more states grant formal recognition to same-sex couples, through marriage, civil union, or domestic partnership, the danger exists (and has been realized in many places) that only those who formalize their relationships will be eligible for employee health benefits for their partners. It will, in other words, make marriage mandatory. The LGBT movement should not be happy with such a result. The fight for marriage equality is supposed to be for the choice whether to marry, but there's no choice if it's the difference between health insurance for your partner or no health insurance for your partner. My university doesn't require that choice. Now Michigan doesn't either. Lambda Legal is fighting for benefits for same-sex couples only in Arizona, even though a 2009 law stripped both same-sex and different-sex couples of those benefits. The case that will be argued in the Ninth Circuit on Valentine's Day. I think Lambda is making a mistake, and I'll be writing about that more next week.
Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year.
The University of Michigan responded to the state supreme court's ruling by extending benefits to Otherwise Qualified Adults (OQA), anyone who has lived with the employee for more than six months, not as an employee or a tenant. The individual also cannot be a relative. Children of an OQA are also eligible for coverage. I have not seen the exact language approved by the Commission, so I don't know if it also excludes relatives.
I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.
I have long criticized domestic partner benefits for same-sex couples only. Now different-sex couples in Michigan will be equally eligible for benefits. It's taken a long time, but it looks like Michigan will have a better policy than the one struck down by the court.
As more states grant formal recognition to same-sex couples, through marriage, civil union, or domestic partnership, the danger exists (and has been realized in many places) that only those who formalize their relationships will be eligible for employee health benefits for their partners. It will, in other words, make marriage mandatory. The LGBT movement should not be happy with such a result. The fight for marriage equality is supposed to be for the choice whether to marry, but there's no choice if it's the difference between health insurance for your partner or no health insurance for your partner. My university doesn't require that choice. Now Michigan doesn't either. Lambda Legal is fighting for benefits for same-sex couples only in Arizona, even though a 2009 law stripped both same-sex and different-sex couples of those benefits. The case that will be argued in the Ninth Circuit on Valentine's Day. I think Lambda is making a mistake, and I'll be writing about that more next week.
Tuesday, November 30, 2010
"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)
The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers.
The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.
But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.
The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:
We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.
This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.
With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:
There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.
The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.
The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.
But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.
The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.
But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.
The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:
We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.
This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.
With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:
There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.
The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.
The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.
But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.
Monday, November 22, 2010
Kudos to American University for expanding domestic partnership benefits to include different-sex couples
It's no surprise to readers of this blog (or my book) that I dislike domestic partner benefits extended only to same-sex couples. The first employer-provided DP benefits were for same- and different-sex partners, and the theory behind them was that "marriage" was too narrow a category for what counted as family and that a couple should not have to marry for one to be able to protect the economic well-being of the other. The rise of DP benefits for same-sex couples only, however, reflected a different perspective, one based solely on the inability of same-sex couples to marry. Same-sex only benefits accepted marriage as a proper criterion for extending benefits but gave same-sex couples benefits only because they could not marry.
The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.
So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.
Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.
Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.
Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.
I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.
Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.
But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.
The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.
So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.
Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.
Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.
Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.
I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.
Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.
But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.
Tuesday, June 22, 2010
New FMLA regs clarify what was already the law so let's not claim this is a dramatic shift
When the Obama administration issues its regulations on taking leave to care for a partner's child under the Family and Medical Leave Act, it will simply be reiterating what is already the law. It makes me a tad crazy that the new regulations suggest they are a change. While I believe that employers might have acted in violation of the law in the past (as the story of one couple in this New York Times article suggests), the regulations implementing the FMLA have always extended the right to leave to care for a child to whom one stands "in loco parentis." Such a person is anyone who is acting as a parent to a child, and the regulations have always made clear that neither a biological nor a legal relationship was necessary.
Now the NY Times article accurately states the language of the existing regulations, but still its thrust is that the Obama adminstration is doing something new; the first sentence of the article says that Obama's actions "expand" the rights of same-sex couples with children. But adding language that explicitly names the nonbiological parent in same-sex couple is not the same as "expanding" the law when the law already covers those relationships. I would concede that the new regulations clarify the law by expliciting naming same-sex couples and their children.
This is not a minor quibble. The language of the statute referring to "in loco parentis" relationships always recognized, since the FMLA's passage in 1993, that children may be cared for by individuals who are neither a legal nor a biological parent. To fulfill the law's purpose of allowing a worker to care for a sick or newborn child without losing his or her job, the law had to encompass all the circumstances under which an employee may end up with day-to-day responsibilities for a child's care and support. And it did. From the beginning. And if the statute was not clear enough, the original regulations explicitly stated that a legal or biological relationship was not required.
What more did a nonbio mom or dad need to take leave to care for a partner's biological child? Nothing. And many nonbio parents have taken such leave. (I did an informal survey of lawyers around the country about this in 2007, and this confirmed the availability of the leave for nonbio parents). The Tucson nonbio mom mentioned in the NY Times article could have filed a complaint against her employer, and she would have won -- not to take care of her partner, but to take care of their child. If she assumed the law would not apply to her parental relationship because it did not apply to her partner relationship, she was wrong.
I'm dismayed about the coverage of this for another reason. In my mind it plays into the idea that if a same-sex couple is not explicitly included within a law then the law provides them no benefits. But this wasn't true for the federal employee sick and bereavement leave policy that was the subject of final regulations last week. (See my earlier post.) Same-sex couples had been entitled to use their sick leave to care for one another because they fell within the larger category of those with a "close association." And that broader formulation meant that relationships beyond "couples" could also qualify for the leave.
For FMLA leave, same-sex couples can't be named because that would require a statutory change, but parent-child relationships exist independent of couple relationships. The "in loco parentis" standard was always the right standard; it's not because of a woman's relationship with her partner, but rather because of her relationship with the child that she should be allowed FMLA leave. And that's been in placed for the better part of the last two decades.
There is value in explicit naming. But it also turns the issue into part of the culture war about same-sex relationships and same-sex marriage. That's not where it belongs. No one should object to an adult taking leave to care for a child for whom s/he has day-to-day responsibility.
Now the NY Times article accurately states the language of the existing regulations, but still its thrust is that the Obama adminstration is doing something new; the first sentence of the article says that Obama's actions "expand" the rights of same-sex couples with children. But adding language that explicitly names the nonbiological parent in same-sex couple is not the same as "expanding" the law when the law already covers those relationships. I would concede that the new regulations clarify the law by expliciting naming same-sex couples and their children.
This is not a minor quibble. The language of the statute referring to "in loco parentis" relationships always recognized, since the FMLA's passage in 1993, that children may be cared for by individuals who are neither a legal nor a biological parent. To fulfill the law's purpose of allowing a worker to care for a sick or newborn child without losing his or her job, the law had to encompass all the circumstances under which an employee may end up with day-to-day responsibilities for a child's care and support. And it did. From the beginning. And if the statute was not clear enough, the original regulations explicitly stated that a legal or biological relationship was not required.
What more did a nonbio mom or dad need to take leave to care for a partner's biological child? Nothing. And many nonbio parents have taken such leave. (I did an informal survey of lawyers around the country about this in 2007, and this confirmed the availability of the leave for nonbio parents). The Tucson nonbio mom mentioned in the NY Times article could have filed a complaint against her employer, and she would have won -- not to take care of her partner, but to take care of their child. If she assumed the law would not apply to her parental relationship because it did not apply to her partner relationship, she was wrong.
I'm dismayed about the coverage of this for another reason. In my mind it plays into the idea that if a same-sex couple is not explicitly included within a law then the law provides them no benefits. But this wasn't true for the federal employee sick and bereavement leave policy that was the subject of final regulations last week. (See my earlier post.) Same-sex couples had been entitled to use their sick leave to care for one another because they fell within the larger category of those with a "close association." And that broader formulation meant that relationships beyond "couples" could also qualify for the leave.
For FMLA leave, same-sex couples can't be named because that would require a statutory change, but parent-child relationships exist independent of couple relationships. The "in loco parentis" standard was always the right standard; it's not because of a woman's relationship with her partner, but rather because of her relationship with the child that she should be allowed FMLA leave. And that's been in placed for the better part of the last two decades.
There is value in explicit naming. But it also turns the issue into part of the culture war about same-sex relationships and same-sex marriage. That's not where it belongs. No one should object to an adult taking leave to care for a child for whom s/he has day-to-day responsibility.
Tuesday, June 15, 2010
Final OPM regs value broad range of relationships and should be model for other reforms
I posted last fall about proposed regulations from the Office of Personnel Management concerning for whom a federal employee may use sick or bereavement leave. Yesterday, OPM issued the finals regs, in the process responding to comments received on the proposed regs.
The lesson from the definition of family in these regs is not just how family is defined, but the chronological process getting us to this definition. Had employees previously been able to use leave only to care for a spouse, I would have expected, in response to the President's directive to extend to same-sex couples whatever benefits did not require Congressional action, that some version of same-sex only "permanent partners" or "domestic partners" would have been added. After all, immigration reform seeks to add same-sex permanent partners, and extension of employee health insurance benefits seeks to add same-sex domestic partners. No talk of a broad definition of family there, and no ability for different-sex couples to eschew marriage if they wish to benefit from the relevant law. (The vast majority of countries that allow same-sex partners of citizens to immigrate also allow the unmarried different-sex partners to immigrate; it's the relationship that counts, not the formal legal status. Readers of this blog know I write frequently about how much marriage matters in American law (and shouldn't) as compared with all other Western countries...see a post here about Canada.)
Well for many years (dating back to Clinton), federal employees have been permitted to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." The regs finalized yesterday do not eliminate this definition; they merely provide specific examples of relationships that already fall within that definition, making explicit what the law already required (and acknowledging that there had been some inconsistency among agencies about applying the legal standard). The commentary to the regs states that the government is providing no additional benefit but rather clarifying that domestic partners (same-sex and different-sex) come within the existing definition.
In leaving in place the broad language, the commentary makes clear that a "close friend" can also be covered, "to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law." This category is critical for LGBT individuals, especially those without partners, because our "chosen family" is so often our only or primary family. OPM specifically declined to provide an exhaustive list of relationships that come within the "close association" clause, prefering a case-by-case determination.
I lament LGBT advocacy that focuses on achieving for same-sex couples what heterosexual couples have -- the access to marriage (or its equivalent), with marriage the gatekeeper to all benefits and obligations, or, when marriage is not available, the access for same-sex partners to what married heterosexuals have (and no option other than marriage for different-sex couples). My book urges a much broader recognition of families and relationships, and I specifically advocated the federal sick leave definition as a model for all laws designed to facilitate a person's caretaking responsibilities.
The broad definition came at a time when explicit acknowledgement of same-sex partners might have triggered a political response. The language on "close association" and "equivalent of a family relationship" got so little attention that I had never heard of it and was shocked when I found it (and found regulations making clear that "nontraditional" families were included). Indeed, as I spread the word about this leave policy, I found no one in a gay advocacy group who had heard of it (except gay federal employee groups). This broad view of family is so much better than the narrow lens of marriage, but has been all but eclipsed by marriage advocacy. But the reality is that the new regulations could not cut back on the existing policy; that would have been politically indefensible. But broadening from marriage (or civil union/domestic partnership) to a broader definition just does not seem to happen. Ever. And that's a loss to far too many in our community.
The lesson from the definition of family in these regs is not just how family is defined, but the chronological process getting us to this definition. Had employees previously been able to use leave only to care for a spouse, I would have expected, in response to the President's directive to extend to same-sex couples whatever benefits did not require Congressional action, that some version of same-sex only "permanent partners" or "domestic partners" would have been added. After all, immigration reform seeks to add same-sex permanent partners, and extension of employee health insurance benefits seeks to add same-sex domestic partners. No talk of a broad definition of family there, and no ability for different-sex couples to eschew marriage if they wish to benefit from the relevant law. (The vast majority of countries that allow same-sex partners of citizens to immigrate also allow the unmarried different-sex partners to immigrate; it's the relationship that counts, not the formal legal status. Readers of this blog know I write frequently about how much marriage matters in American law (and shouldn't) as compared with all other Western countries...see a post here about Canada.)
Well for many years (dating back to Clinton), federal employees have been permitted to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." The regs finalized yesterday do not eliminate this definition; they merely provide specific examples of relationships that already fall within that definition, making explicit what the law already required (and acknowledging that there had been some inconsistency among agencies about applying the legal standard). The commentary to the regs states that the government is providing no additional benefit but rather clarifying that domestic partners (same-sex and different-sex) come within the existing definition.
In leaving in place the broad language, the commentary makes clear that a "close friend" can also be covered, "to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law." This category is critical for LGBT individuals, especially those without partners, because our "chosen family" is so often our only or primary family. OPM specifically declined to provide an exhaustive list of relationships that come within the "close association" clause, prefering a case-by-case determination.
I lament LGBT advocacy that focuses on achieving for same-sex couples what heterosexual couples have -- the access to marriage (or its equivalent), with marriage the gatekeeper to all benefits and obligations, or, when marriage is not available, the access for same-sex partners to what married heterosexuals have (and no option other than marriage for different-sex couples). My book urges a much broader recognition of families and relationships, and I specifically advocated the federal sick leave definition as a model for all laws designed to facilitate a person's caretaking responsibilities.
The broad definition came at a time when explicit acknowledgement of same-sex partners might have triggered a political response. The language on "close association" and "equivalent of a family relationship" got so little attention that I had never heard of it and was shocked when I found it (and found regulations making clear that "nontraditional" families were included). Indeed, as I spread the word about this leave policy, I found no one in a gay advocacy group who had heard of it (except gay federal employee groups). This broad view of family is so much better than the narrow lens of marriage, but has been all but eclipsed by marriage advocacy. But the reality is that the new regulations could not cut back on the existing policy; that would have been politically indefensible. But broadening from marriage (or civil union/domestic partnership) to a broader definition just does not seem to happen. Ever. And that's a loss to far too many in our community.
Friday, June 4, 2010
Excluding different sex domestic partners bodes ill for federal law reform
Domestic partners of federal employees are now eligible for long term care insurance. The Obama administration determined that it could make this change, without going to Congress, as part of the review of federal employee benefits the President announced last June. The program will be limited, however, to same-sex partners. The final regulations state that "opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners."
I had hoped that the approach Secretary of State Hillary Clinton announced the month before Obama's directive, covering both same- and different-sex partners of State Department employees, would prevail as reforms of benefits for partners of federal employees proceeded. I had hoped that Maine Senator Susan Collins would prevail in amending legislation extending the prize of benefits -- health insurance -- to both same- and different-sex partners.
My reasoning is simple. Two people who intertwine their lives with a level of economic interdependence should have the option to provide for each other's economic well-being, and that includes access to health care. (Yes, of course, everyone should have health care regardless of employment or relationship status...maybe someday). The federal regulations require that the domestic partners live together and intend to do so indefinitely, and that they "share responsibility for a significant measure of each other's financial obligations." Those are reasonable requirements, but they are equally reasonable for different-sex partners. For that matter, those two criteria should be enough for coverage for any two people, including those not in a sexually-based relationship.
Unfortunately, the emphasis on marriage for same-sex couples has obscured the ability to think about why federal employee benefits extend to anyone other than the employee. Instead, the focus of the current reform is essentially compensating for the inability of same-sex partners to marry. I lament this as a missed opportunity to think more expansively about the families and relationships that enrich all of our lives.
Sometimes, legislatures do go beyond the include-them-solely-because-they-can't-marry rationale. In Rhode Island, for example, both same- and different-sex domestic partners are authorized to make funeral and burial decisions. The law was vetoed by Rhode Island's governor last year, but overriden by the legislature in January. Oddly, however, a domestic partner must show economic interdependence -- measured by very specific criteria -- to qualify, but that factor that has nothing to do with whom the deceased would want to make a burial decision; it does make sense for health insurance coverage, because that is an economic matter, but burial decisions are about doing what the deceased would want, and that has nothing to do with intertwining finances. (In fact, my partner of more than 20 years and I would not qualify as domestic partners in Rhode Island if we did not already have wills naming each other as beneficiaries).
I do like one thing about the new federal regulations on partner long-term care insurance coverage. They require only a statement attesting to meeting the criteria, not submission of other proof. In response to some comments by those seeking more documentation, the final regulations explain that "we do not require documentation such as bank statements or other proof of financial support for spousal coverage." That part is a good model for the future.
But the limitation to same-sex couples is the wrong approach, as it makes marriage matter too much and fails many who deserve coverage. What next? After DOMA is repealed will same-sex couples have to get married for coverage?
I had hoped that the approach Secretary of State Hillary Clinton announced the month before Obama's directive, covering both same- and different-sex partners of State Department employees, would prevail as reforms of benefits for partners of federal employees proceeded. I had hoped that Maine Senator Susan Collins would prevail in amending legislation extending the prize of benefits -- health insurance -- to both same- and different-sex partners.
My reasoning is simple. Two people who intertwine their lives with a level of economic interdependence should have the option to provide for each other's economic well-being, and that includes access to health care. (Yes, of course, everyone should have health care regardless of employment or relationship status...maybe someday). The federal regulations require that the domestic partners live together and intend to do so indefinitely, and that they "share responsibility for a significant measure of each other's financial obligations." Those are reasonable requirements, but they are equally reasonable for different-sex partners. For that matter, those two criteria should be enough for coverage for any two people, including those not in a sexually-based relationship.
Unfortunately, the emphasis on marriage for same-sex couples has obscured the ability to think about why federal employee benefits extend to anyone other than the employee. Instead, the focus of the current reform is essentially compensating for the inability of same-sex partners to marry. I lament this as a missed opportunity to think more expansively about the families and relationships that enrich all of our lives.
Sometimes, legislatures do go beyond the include-them-solely-because-they-can't-marry rationale. In Rhode Island, for example, both same- and different-sex domestic partners are authorized to make funeral and burial decisions. The law was vetoed by Rhode Island's governor last year, but overriden by the legislature in January. Oddly, however, a domestic partner must show economic interdependence -- measured by very specific criteria -- to qualify, but that factor that has nothing to do with whom the deceased would want to make a burial decision; it does make sense for health insurance coverage, because that is an economic matter, but burial decisions are about doing what the deceased would want, and that has nothing to do with intertwining finances. (In fact, my partner of more than 20 years and I would not qualify as domestic partners in Rhode Island if we did not already have wills naming each other as beneficiaries).
I do like one thing about the new federal regulations on partner long-term care insurance coverage. They require only a statement attesting to meeting the criteria, not submission of other proof. In response to some comments by those seeking more documentation, the final regulations explain that "we do not require documentation such as bank statements or other proof of financial support for spousal coverage." That part is a good model for the future.
But the limitation to same-sex couples is the wrong approach, as it makes marriage matter too much and fails many who deserve coverage. What next? After DOMA is repealed will same-sex couples have to get married for coverage?
Wednesday, June 17, 2009
Federal government employees can ALREADY use their sick leave to care for partners -- did no one tell Obama that?
Early news says that one of the benefits Obama is extending to gay federal employees is the ability to use their sick leave to care for partners and their children. Well -- news flash! They already have this right.
Federal government employees can use their own sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." Much is made of openly gay OPM head John Berry. Well, it's his department that implements this very policy. Read it here. This definition extends to same-sex partners, but it extends beyond that, to the family relationships that LGBT folks (and straight people) often develop beyond partners.
This policy reflects a deliberate decision to recognize a broad definition of family. The original proposal was much narrower. When OPM adopted this broader definition, it said: "The broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases." (That's from the Final Rule in the December 2, 1994 Federal Register....yes it's been the law since 1994).
What makes me angry about today's action is that it obliterates the importance of defining family broadly when it comes to balancing work and family responsibilities. This week Congress held a hearing on HR 2460, the Healthy Families Act, which would require private employers to provide paid sick leave. Employees would be able to use their leave to care for sick family members...defined exactly as the definition now reads for federal employees.
Gay people don't just have partners and children. We have families beyond that which mirrors heterosexual marriage. Many are estranged from parents or have moved away from their families of origin to communities more accepting of LGBT people. These relationships matter a lot...enough to generate caretaking responsibilities when someone falls ill. The fight for same-sex marriage has in many ways narrowed the discussion of family in the gay community and in the minds of straight allies.
So let's give credit to Clinton's OPM for instituting a truly gay friendly and family friendly sick leave policy for federal employees. Will someone now please tell Obama?
Federal government employees can use their own sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." Much is made of openly gay OPM head John Berry. Well, it's his department that implements this very policy. Read it here. This definition extends to same-sex partners, but it extends beyond that, to the family relationships that LGBT folks (and straight people) often develop beyond partners.
This policy reflects a deliberate decision to recognize a broad definition of family. The original proposal was much narrower. When OPM adopted this broader definition, it said: "The broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases." (That's from the Final Rule in the December 2, 1994 Federal Register....yes it's been the law since 1994).
What makes me angry about today's action is that it obliterates the importance of defining family broadly when it comes to balancing work and family responsibilities. This week Congress held a hearing on HR 2460, the Healthy Families Act, which would require private employers to provide paid sick leave. Employees would be able to use their leave to care for sick family members...defined exactly as the definition now reads for federal employees.
Gay people don't just have partners and children. We have families beyond that which mirrors heterosexual marriage. Many are estranged from parents or have moved away from their families of origin to communities more accepting of LGBT people. These relationships matter a lot...enough to generate caretaking responsibilities when someone falls ill. The fight for same-sex marriage has in many ways narrowed the discussion of family in the gay community and in the minds of straight allies.
So let's give credit to Clinton's OPM for instituting a truly gay friendly and family friendly sick leave policy for federal employees. Will someone now please tell Obama?
Wednesday, May 27, 2009
SEIU resolution values all families
Service Employees International Union (SEIU) has been reading my book, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law
Here is the full text of Resolution # 109 Adopted at the 2008 SEIU Convention
Valuing All Families
Members of SEIU work hard every day to provide for their families and build for them a better future. Our members’ love of and commitment to their families reflect true family values.
Members of SEIU live in a broad array of family structures. Many of us care for and live with family members– including aging parents, grandchildren, adult siblings, and more – who are not recognized by our employers or our government as “family” because they are not related to us by marriage, blood or adoption.
Laws and policies that narrowly define “family” as limited to two legally-married adults of the opposite sex raising their biological children are often used against immigrants, people of color and the working poor who are more likely to live in family structures that differ from this model.
Narrow definitions of family exclude many relationships that our members call family, including relationships with individuals for whom we have primary care-taking responsibility and relationships with individuals with whom we share economic and emotional interdependence.
Government and employer-provided benefits should support individuals with day-to-day responsibilities to care for and financially support minor children and dependent adults in all family forms, and should protect interdependent adult relationships.
Therefore be it resolved:
This convention affirms SEIU’s commitment to valuing all families, and to protecting the widest possible range of family structures.
SEIU will make it a collective bargaining and legislative goal to ensure that all of our members’ families are respected, protected, and enjoy equal rights and benefits.
SEIU will support and advocate for legislative efforts, at all levels of government, that allow workers to define for themselves who will be considered their family.
SEIU will oppose efforts to penalize working people who live in family structures different from the nuclear family model, such as “overcrowding” regulations that seek to restrict who is permitted to live together in one household and have been used to target immigrant communities and communities of color.
Thanks for Nicole Berner, SEIU Associate General Counsel, for bringing this to my attention (and telling me it was based on my book). Berner notes that this resolution allows SEIU to take positions consistent with the resolution without the need for further consideration or action. Thanks also to SEIU General Counsel Judith Scott for her decades of devotion to the labor movement.
Here is the full text of Resolution # 109 Adopted at the 2008 SEIU Convention
Valuing All Families
Members of SEIU work hard every day to provide for their families and build for them a better future. Our members’ love of and commitment to their families reflect true family values.
Members of SEIU live in a broad array of family structures. Many of us care for and live with family members– including aging parents, grandchildren, adult siblings, and more – who are not recognized by our employers or our government as “family” because they are not related to us by marriage, blood or adoption.
Laws and policies that narrowly define “family” as limited to two legally-married adults of the opposite sex raising their biological children are often used against immigrants, people of color and the working poor who are more likely to live in family structures that differ from this model.
Narrow definitions of family exclude many relationships that our members call family, including relationships with individuals for whom we have primary care-taking responsibility and relationships with individuals with whom we share economic and emotional interdependence.
Government and employer-provided benefits should support individuals with day-to-day responsibilities to care for and financially support minor children and dependent adults in all family forms, and should protect interdependent adult relationships.
Therefore be it resolved:
This convention affirms SEIU’s commitment to valuing all families, and to protecting the widest possible range of family structures.
SEIU will make it a collective bargaining and legislative goal to ensure that all of our members’ families are respected, protected, and enjoy equal rights and benefits.
SEIU will support and advocate for legislative efforts, at all levels of government, that allow workers to define for themselves who will be considered their family.
SEIU will oppose efforts to penalize working people who live in family structures different from the nuclear family model, such as “overcrowding” regulations that seek to restrict who is permitted to live together in one household and have been used to target immigrant communities and communities of color.
Thanks for Nicole Berner, SEIU Associate General Counsel, for bringing this to my attention (and telling me it was based on my book). Berner notes that this resolution allows SEIU to take positions consistent with the resolution without the need for further consideration or action. Thanks also to SEIU General Counsel Judith Scott for her decades of devotion to the labor movement.
Monday, May 25, 2009
Same-sex and different-sex domestic partners of foreign service personnel to receive benefits
The Advocate has printed the draft of a letter by Secretary of State Hillary Clinton detailing the extension of benefits to the domestic partners of foreign service personnel assigned abroad. In describing the letter, the Advocate article begins by saying it "details her intentions to extend certain benefits to same-sex partners of foreign service officers posted abroad."
This characterization of Clinton's letter is true, but it is also incomplete. The benefits will be extended to both same-sex AND different-sex domestic partners. Clinton's letter says, "At bottom, the Department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do." The Advocate article gets to this at the end of its fourth paragraph.
While granting benefits to same-sex partners is huge, granting them to different-sex partners is monumental. The original concept of domestic partnership, dating to the early 1980's, was that marriage should not be a prerequisite for various legal consequences. The first domestic partner employee policies covered both gay and straight couples.
Over time, the right wing started blaming all social problems on the decline of life-long heterosexual marriage, and "marriage promotion" became a staple of public policy. And the gay rights movement made achieving access to marriage a priority. In this context, many employers chose to provide domestic partner benefits only to same-sex couples. Since different-sex couples could marry, they had to marry to obtain the benefits. By this thinking, domestic partner benefits existed solely to compensate gay employees for the inability to marry. With such a rationale, no wonder several Massachusetts employers stopped offering domestic partner benefits once same-sex couples there could marry.
In an earlier post on Senate hearings on extending same-sex domestic partner benefits to all federal employees, I noted that Maine Senator Susan Collins spoke favorably about covering both different-sex and same-sex couples. I hope that Clinton's decision gives a needed push to this more inclusive approach.
Same-sex marriage proponents often say they want couples to have the choice to marry. But it's no choice if it's the only path to protecting the economic security of an employee's family. Thank you, Secretary Clinton, for really getting it.
Next I'll be looking at these important details when the policy is released: how is domestic partner defined, and when can an employee obtain benefits for children who are the legal children only of the partner? Stay tuned.
This characterization of Clinton's letter is true, but it is also incomplete. The benefits will be extended to both same-sex AND different-sex domestic partners. Clinton's letter says, "At bottom, the Department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do." The Advocate article gets to this at the end of its fourth paragraph.
While granting benefits to same-sex partners is huge, granting them to different-sex partners is monumental. The original concept of domestic partnership, dating to the early 1980's, was that marriage should not be a prerequisite for various legal consequences. The first domestic partner employee policies covered both gay and straight couples.
Over time, the right wing started blaming all social problems on the decline of life-long heterosexual marriage, and "marriage promotion" became a staple of public policy. And the gay rights movement made achieving access to marriage a priority. In this context, many employers chose to provide domestic partner benefits only to same-sex couples. Since different-sex couples could marry, they had to marry to obtain the benefits. By this thinking, domestic partner benefits existed solely to compensate gay employees for the inability to marry. With such a rationale, no wonder several Massachusetts employers stopped offering domestic partner benefits once same-sex couples there could marry.
In an earlier post on Senate hearings on extending same-sex domestic partner benefits to all federal employees, I noted that Maine Senator Susan Collins spoke favorably about covering both different-sex and same-sex couples. I hope that Clinton's decision gives a needed push to this more inclusive approach.
Same-sex marriage proponents often say they want couples to have the choice to marry. But it's no choice if it's the only path to protecting the economic security of an employee's family. Thank you, Secretary Clinton, for really getting it.
Next I'll be looking at these important details when the policy is released: how is domestic partner defined, and when can an employee obtain benefits for children who are the legal children only of the partner? Stay tuned.
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