January 8, 2010 | by Chris Johnson
State Dept. issues guidance for FSOs with same-sex partners

A new State Department directive obtained this week by DC Agenda instructs U.S. embassies how to implement new rules for Foreign Service officers with same-sex partners.

The undated message brings into effect changes President Obama ordered in June as part of a memorandum that notably gave some partner benefits to LGBT federal workers.

In addition to these benefits, the June memorandum offered to the same-sex partners of FSOs resources for moving abroad, assistance in obtaining foreign visas as well as access to employment opportunities, emergency evacuation and embassy medical units.

This new cable directs U.S. embassies to carry out that June order by instructing posts to ask host countries to issue visas to the same-sex partners of FSOs. Embassies are exempt from taking this action only if they believe asking host countries for these visas would make allowing an FSO’s same-sex partner to accompany them more difficult.

UNCLAS STATE 000788

SUBJECT: Same-Sex Domestic Partner Accreditation

1. Summary and Action request: In this cable, the Department is advising posts about new accreditation procedures regarding declared same-sex domestic partners of our U.S. government personnel under Chief of Mission authority. These individuals have been provided a diplomatic passport by the Department and/or are listed on the travel orders or approved OF-126 (Foreign Service Residence and Dependency Report) of a sponsoring employee following submission of an affidavit declaring a domestic partner relationship pursuant to 3 FAM 1610. In this regard, we request that posts inquire about the host government’s accreditation policy for same-sex partners and urge host governments to accredit them where such accreditation is possible. See action request in PARA 5. End Summary.

2. The Department’s new practice regarding the accreditation of same-sex partners is part of its implementation of the President’s June 17 Memorandum on Federal Benefits and Non-Discrimination “to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex.” Secretary Clinton has repeatedly stated her commitment to this goal.

3. The Department has taken steps to implement this policy and, as part of that effort, has changed its visa and accreditation policies regarding personnel of foreign missions in the United States:

a. The Department has amended its visa regulations and is issuing diplomatic visas to same-sex domestic partners of foreign mission personnel, subject to reciprocity.

b. On November 4, the Department’s Office of Protocol advised foreign missions in the United States that it will accept the accreditation of same-sex domestic partners as members of the family of diplomatic and consular personnel who enjoy privileges and immunities. The text of Protocol’s circular note is set forth at PARA 7.

4. The Department is also working with the Department of Homeland Security to amend the regulations regarding work authorization so that same-sex domestic partners of foreign diplomats who are accredited will also be able to work in the United States. Once the new regulations are issued, we will be seeking to amend our bilateral dependent employment agreements or arrangements to allow for the reciprocal extension of employment authorization to domestic partners.

5. ACTION: Posts are requested to approach the Ministry of Foreign Affairs, Office of Protocol, or other appropriate office to advise orally, in a meeting, that the United States intends to seek accreditation for the same-sex domestic partners of its diplomatic and consular personnel as members of the family of such diplomatic and consular personnel and requests that they be accorded the same status, privileges and immunities currently accorded other members of the household, such as spouses.

Posts are asked to advise the Department (M and regional A/S by front channel cable) whether the MFA in such a meeting expressed its willingness to accept the accreditation of USG same-sex partners. Posts should also advise the Department on approaches to other offices in the host government in situations where the decision may not rest only with the MFA. Posts are also asked to include details on steps that post will take or is taking to ensure same sex partners are accommodated to the fullest extent possible.

EXCEPTION TO ACTION REQUEST: Posts that are of the view that such an approach to the host government would do more harm than good by impeding the ability of same-sex partners to accompany personnel to post or otherwise cause harm to personnel or their families are asked to advise the Department (M, L, and regional A/S) by front channel cable of that conclusion, the reasoning supporting the conclusion, and recommendations for further action that may implement the President’s and the Secretary’s directives.

6. Where the MFA expresses a willingness to accept same-sex partners, post should subsequently notify the MFA that the individual is a member of the family of an accredited member of the diplomatic or consular mission in the identical fashion that it accredits other family members. In such situations, posts are asked to update the Department (M, L, and regional A/S) by front channel cable if any implementation issues arise in the context of such accreditations.

7. The Office of Protocol’s Circular Diplomatic Note: The Secretary of State presents her compliments to Their Excellencies and Messieurs and Mesdames the Chiefs of Mission and refers to the notes dated November 3, 1988, February 2, 1987, and May 22, 1986, concerning the definition of family members. As indicated in the referenced May 22, 1986, note, it has long been an accepted principle of international law that the privileges and immunities to which members of the mission are entitled extend, to a certain degree, to the members of their families forming part of their households. The Vienna Convention on Diplomatic Relations (Article 37(1)) specifies the privileges and immunities which shall be accorded such “members of the family of a diplomatic agent forming part of [the] household” but does not provide a definition of the term “members of the family” for the purposes of the Convention. The drafters of the Convention recognized that the concept of “family” differs among the societies of the world and left the matter to be resolved according to the standards of the respective receiving States.

The Chiefs of Mission are informed that, in addition to the categories of individuals previously accepted as family members, the Department has determined that the definition of “family” forming part of the household of a diplomatic agent may include same-sex domestic partners (“domestic partners”) for purposes of the application of the Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations in the United States. In accordance with guidance from the White House, the Department is not in a position to accept the accreditation of opposite-sex domestic partners as members of the family.

In order to be eligible for acceptance as a domestic partner of a member of a diplomatic or consular mission, a same-sex domestic partner must not be a member of some other household, must reside regularly in the household of the principal, and must be recognized by the sending State as a family member forming part of the household of the principal, as demonstrated by eligibility for rights and benefits from the sending State. Therefore, when notifying the Department of domestic partners of its mission members, the sending State is requested to submit appropriate documentation that it recognizes the same-sex domestic partner relationship, which could include evidence that the sending State provided the domestic partner with a diplomatic or an official passport or other documentation based on that status, or with travel or other allowances. Domestic partners of employees of a diplomatic or consular mission (and of miscellaneous foreign government offices) accepted by the Department will be eligible for “A” or “G” visas. The new visa regulation is enclosed.

In addition, the Department intends to pursue the legal measures necessary to enable the United States to offer dependent employment to same-sex domestic partners, on a reciprocal basis, in the context of bilateral dependent employment agreements or arrangements. The Chiefs of Mission will be advised of any such developments as soon as it is possible to do so.

The attention of the Chiefs of Mission is also drawn to applicable provisions of international law in respect of the termination of status. As stated in previous circular notes, whenever any person who has been accorded status as a member of the family in the United States (other than a student attending boarding school or college) ceases to reside with the principal, such person immediately ceases to be a member of the family within the meaning of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. Accordingly, all privileges and immunities, if any, to which such person previously had been entitled in the United States would terminate thirty days thereafter unless in a particular case a shorter time has been specified by the Department of State.

The Chiefs of Mission are advised that until the Department of State publications and circular notes are revised explicitly to incorporate “domestic partners” as members of the family of diplomatic or consular agent forming part of the household, references to family members in the context of privileges and immunities and related matters other than dependent employment should be understood to include domestic partners as described herein.

It is emphasized that the standard set forth in this note is to define members of the family for the purposes of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations and is without prejudice to other definitions of family for other purposes which have an independent basis in international agreements or U.S. domestic law.

8. MINIMIZE CONSIDERED.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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