News
Fed’l benefits issues linger post-DOMA for gay couples
Questions remain on Social Security, taxes, veterans benefits and family leave
Federal benefit issues for gay couples continue to linger after the Supreme Court ruling against the Defense of Marriage Act (Washington Blade photo by Michael Key).
Following the Supreme Court’s decision striking down the Defense of Marriage Act, the extent to which many federal benefits — taxes, Social Security, veterans benefits and family leave — will flow to married same-sex couples remains in question.
The Obama administration has extended certain benefits to married same-sex couples regardless of whether they live in the United States, but other benefits are still in limbo because of law, regulation or policy that determines whether a couple should be considered legally married.
Here’s a breakdown of these benefit categories and where they stand in terms of what’s obstructing their flow to married same-sex couples and what LGBT advocates see as the way forward:
1. SOCIAL SECURITY
Last week, the Social Security Administration announced for the first time it was starting to process retirement claims for married same-sex couples who apply for them in aftermath of the court decision on DOMA. But the extension of these benefits is limited.
On Friday, the agency published guidance indicating these benefits will flow to same-sex married couples living in states that recognize their unions, but couples that apply for these benefits in non-marriage equality states for the time being will have their requests placed on hold.
“Bill (the claimant) and Bob (the NH) marry in MA after MA recognizes same-sex marriage, but are domiciled Texas (TX),” the guidance says. “Bill files for husband’s benefits on Bob’s record. They meet all other factors of entitlement. Hold the claim.”
William “BJ” Jarrett, a Social Security spokesperson, confirmed on Monday the agency is processing some Social Security retirement spouse claims when the individual was married in a state that permits same-sex marriage and lives in a marriage-equality state at the time of application — or while the claim is pending a final determination. Still, he acknowledged other retirement claims are on hold.
“For all other claims, including Social Security survivors benefits, we continue to work with the Department of Justice on the development and implementation of policy and processing instructions,” Jarrett said. “We do, however, encourage individuals who believe they may be eligible for Social Security benefits to apply now to protect against the loss of any potential benefits.”
The reasoning for placing these claims on holds is statutory. Social Security law looks to the state of residence when a couple applies for benefits to determine if they’re married instead of looking to the place of celebration.
Even so, LGBT advocates say it’s possible for the Obama administration to interpret the Supreme Court ruling against DOMA in a broad way that allows them to offer Social Security benefits to a greater number of couples.
Michael Cole-Schwartz, a Human Rights Campaign spokesperson, indicated that no final decision has been with the assessment of these benefits as he encouraged the Obama administration to expand the benefits to additional couples.
“We are glad to see some couples getting benefits and that the door is still open for those couples living in non-marriage equality states,” Cole-Schwartz said. “We urge them to take the broadest interpretation to ensure the maximum numbers of same sex couples have access to benefits.”
Susan Sommer, a senior counsel at Lambda Legal, said her organization also believes gay couples in civil unions or domestic partnerships should also be eligible for Social Security benefits.
“We think that the laws reads for sure to includes those people who live in those states that have a civil union or domestic partnership, but waiting to hear from the Obama administration for confirmation on that point,” Sommer said.
But a statutory change may be necessary. In that event, Rep. Linda Sanchez (D-Calif.) has introduced Social Security Equality Act, which would enable gay couples to receive Social Security no matter where they live — even if their union isn’t a marriage, but a civil union or a domestic partnership.
“It is time for our government to stop telling gay and lesbian couples that they are second class citizens,” Sanchez said last week in a statement. “Same-sex couples pay into Social Security over the course of their working lives just like other Americans. They should receive the full benefits they have earned.”
2. TAXES
Another question is whether legally married same-sex couples throughout the country will be eligible for tax benefits — such as the exemption from the estate tax, the ability to jointly file and exemption from taxes on employer-provided spousal health benefits — in the wake of the DOMA decision. These couples are currently not receiving benefits if they live in states that haven’t legalized marriage equality.
That means if DOMA-lawsuit plaintiff Edith Windsor had moved to a non-marriage equality state like Alabama with Thea Spyer after marrying in Canada, she wouldn’t have been eligible for exemption from the estate tax as a result of her own lawsuit.
But what’s different about these benefits is that neither law nor regulation keeps these benefits from flowing to married same-sex couples that live in marriage equality states. It’s simply the policy of the Internal Revenue Service to look to the state of residence as opposed to the state of celebration in determining whether a couple is married.
Lambda’s Sommer pointed out that only policy is keeping the IRS from allowing these couples in non-marriage equality states to receive tax benefits entitled to other married couples.
“We are aware of no statute or even a regulation that prescribes a choice of law rule for determining the marital status for tax purposes,” Sommer said. “There’s no legal impediment to having the administration follow a place of celebration standard. It could so in addition to, say a place of domicile standard, which has been articulated in some tax court rulings, but still, in some circumstances, as a place of celebration rule.”
An IRS spokesperson referred to the statement currently on the agency’s website posted at the time of the Supreme Court in response to inquiry on whether IRS would implement tax benefits for married same-sex couples on the nationwide basis, regardless of their states of residence.
“We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act,” the statement says. “We will be working with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.”
3. VETERANS BENEFITS
Defense Secretary Chuck Hagel announced on the day the U.S. Supreme Court struck down DOMA that the Pentagon would comply the law to implement benefits for service members with same-sex spouses. But the question of whether veterans will be included as part of the package remains to be seen.
In U.S. Code, the Pentagon was previously unable to provide gay troops spousals benefits under Titles 10 and 32, which govern rights for service members, because of the Defense of Marriage Act. Now that the Supreme Court has struck down Section 3 of DOMA, those benefits should begin to flow.
However, the benefits under Title 38, which governs benefits for veterans, define spouse independently of DOMA in opposite-sex terms. Some of the benefits allocated under this law are disability benefits, survivor benefits and joint burial at a veteran’s cemetery. It’s unclear whether these benefits will begin to flow along with these other benefits because of the wording within the law.
Multiple media outlets are reporting that the Pentagon intends to have the benefits issue wrapped up by Aug. 31 along with the extension of benefits that were available under DOMA, such as military IDs, that were announced in February. Additionally, the U.S. Justice Department is required to file in McLaughlin v. Hagel, an ongoing DOMA lawsuit, to provide a status report by Sept. 9 on benefits afforded to gay troops addressing the Title 38 issue. An informed source told the Washington Blade the issue may be resolved as soon as this week.
Alex Nicholson, who’s gay and legislative director for Iraq & Afghanistan Veterans of America, said his organization has spoken about the issue with the administration and believes it has a “justifiable mandate” to afford these benefits to the legal spouses gay veterans.
“It’s not surprising that they’re taking their time to figure this out and do it right, but I think the mandate from the Supreme Court was clear enough that they could definitely move a little faster,” Nicholson said.
Lambda’s Sommer said the issue for gay veterans isn’t so much Title 38 because Title 1 of the U.S. Code should allow for a gender-neutral construction of this law. Still, she said other portions of the law related to veterans benefits could impact gay veterans seeking claims.
“In the veterans benefits area, there is also a statute kind of like what’s seen in the Social Security context that looks to the place of domicile at the time of celebration or when the right to the benefit has accrued,” Sommer said. “We’ll have to await guidance for how the administration will treat veterans who resided at the time of their marriage, and continue to live, in states that don’t respect their marriages.”
Lt. Cmdr. Nathan Christensen, a Pentagon spokesperson, said the Defense Department is working on the issue, but unable to provide additional information.
“The Department of Defense is working alongside the Department of Justice to implement the Court’s decision as quickly as possible,” Christensen said. “At this time no decisions have been made.”
In a statement provided to the Blade, the Department of Veterans Affairs similarly said the department was working to implement the benefits without providing anything conclusive on the extent to which they would flow.
“Our commitment to our Veterans and their families will continue to be our focus as we work to comply with recent Supreme Court decisions,” the statement says. “We are working closely with the Department of Justice to review relevant statutes and policies to implement any necessary changes to Federal benefits and obligations swiftly and smoothly in order to deliver the best services to all our nation’s Veterans.”
Here a change in the law may be required as well. The Charlie Morgan Act, introduced by Sen. Jeanne Shaheen (D-N.H.), would enable spousal benefits to flow to gay veterans. It was reported out of the Senate Committee on Veterans’ Affairs just prior to August recess.
4. FAMILY AND MEDICAL LEAVE
Yet another issue that related to family leave still persists a few days after the Labor Department issued guidance stating the Family & Medical Leave Act will apply to married same-sex couples in the wake of the Supreme Court decision against DOMA: Will the change apply to married same-sex couples in non-marriage equality states?
On Friday, Labor Secretary Thomas Perez issued guidance to department staff notifying them the Wage & Hour Division made the change as the result of the work with the Justice Department and calling the Supreme Court ruling against DOMA “a historic step toward equality for all American families.”
“As part of this process, the Department of Labor updated several guidance documents today to remove references to DOMA and to affirm the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (FMLA),” Perez said. “This is one of many steps the Department will be taking over the coming months to implement the Supreme Court’s decision.”
The Family & Medical Leave Act entitles employees to take unpaid, job-protected leave for family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 work weeks of leave in a year-long period for the birth of a child or to care for spouse and up to 26 work weeks of leave to care for a service member with a serious injury.
But under current policy, this post-DOMA application of the Family & Medical Leave Act won’t apply to married same-sex couples if they place of residence doesn’t recognize same-sex marriage. A Labor Department official said the Wage & Hour Division’s Family & Medical Leave Act regulations define “spouse” for purposes of marriage as recognized under the state law where an employee resides. All that would be required for to change this policy is a change in regulation.
Tico Almeida, president of Freedom to Work, called on the Labor Department to update the regulations so same-sex marriages are recognized by the state of celebration for family and medical leave purposes.
“The couple that lives in Alabama, flies to New York City for the weekend to get married and returns to Alabama deserves to have the same FMLA rights as the gay and lesbian couples that live in New York City,” Almeida said. “We want a 50-state solution, and that means recognizing same-sex marriages by the state of celebration, even though current FMLA regulations recognize marriage by the state of residency.”
District of Columbia
Man charged with anti-gay assault in D.C. accepts plea offer
Community service offered in exchange for dismissing hate crime charge
A Germantown, Md., man arrested by D.C. police on a charge of simple assault with a hate crime designation for allegedly assaulting a gay man while using “homophobic slurs” has agreed to an offer by prosecutors to plead guilty to simple assault without the hate crime designation and with the promise of having the charge dismissed if he completes, among other requirements, 48 hours of community service work.
Dean Edmundson, 26, standing beside his attorney, officially accepted the offer of a Deferred Sentencing Agreement at an Aug. 18 status hearing in D.C. Superior Court after Senior Judge Hiram Puig-Lugo explained the details of the agreement and confirmed Edmundson’s decision to waive his right to a trial.
Among other things, the judge said the agreement offered by prosecutors with the Office of the United States Attorney for D.C. includes the requirement that he successfully completes 48 hours of community service work, stays away from the victim of the assault, writes a letter of apology to the victim, and does not violate any other laws or get into trouble for the next 12 months.
Puig-Lugo then announced he scheduled a sentencing hearing for Edmundson for Aug. 18, 2027, at which time a determination will made on whether he has fulfilled all the requirements under the agreement and whether the simple assault charge will be dismissed. The judge added that if it is determined that Edmundson did not fulfil the terms of the agreement the charge would remain in place and he could be sentenced to a possible maximum penalty of 180 days in jail and a $1,000 fine.
Edmundson, who appeared in court wearing a business suit with a dress shirt and tie, was released on his own recognizance following his arrest by D.C. police on Feb. 7, 2026.
Police and court records show he was initially charged by arresting officers with simple assault with a hate crime designation. In a statement announcing the arrest, D.C. police said, “On Saturday, Feb. 7, 2026, at approximately 7:45 p.m. the victim and suspect were in the 1500 block of 14th Street, Northwest. The suspect requested a ‘high five’ from the victim. The victim declined and kept walking,” the statement says.
A follow-up arrest affidavit filed by police states that Edmundson followed the victim and called him “bald, ugly, and gay,” and then “pushed the victim with both hands, shoving them, causing the victim to feel the force of the push.” The affidavit adds, “The victim stated that they felt offended and that they were also gay.”
According to the court records, the Office of the U.S. Attorney filed its official charge of simple assault against Edmunson on Feb. 9 without the hate crime designation. The office has not responded to a request by the Washington Blade for its reason for dropping the hate crime designation. The office has also not immediately responded to a follow-up inquiry from the Blade this week asking if prosecutors consulted the victim to obtain the victim’s thoughts about the plea offer.
The Blade, which has a policy of not disclosing the identify of crime victims in cases like this without their consent, could not immediately obtain contact information to reach the victim for comment.
Court records show that Edmundson rejected an earlier plea agreement offer by prosecutors and he was scheduled for a non-jury trial on Aug. 18. The records show his attorney filed a motion earlier this month asking the judge to convert the trial into status hearing on that same day after his client accepted the Deferred Sentencing Agreement offer by the U.S. Attorney’s office. The judge approved the motion without objection from prosecutors.
The White House
White House targets gender-affirming care funding, states fight back
Attorneys general from Md. and elsewhere are fighting directives
The Centers for Medicare and Medicaid Services announced last week that federal funding could no longer be used to pay for gender-affirming care through Medicaid or the Children’s Health Insurance Program.
The rule prohibits federal Medicaid dollars from covering puberty blockers, hormone therapy, and rare instances of surgery for enrollees under the age of 18 in the Medicaid program and under the age of 19 in CHIP. It does not prohibit coverage of counseling or psychotherapy as part of gender-affirming care.
The decision to restrict what healthcare is covered by federal dollars is part of a longer, more aggressive stance the Trump-Vance administration is taking toward LGBTQ healthcare.
Since taking the White House back for his second term, Trump has signed three executive orders that directly target transgender Americans. They include Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” that requires the federal government to recognize only a person’s sex at birth, not their gender identity; Executive Order 14183, “Prioritizing Military Excellence and Readiness,” which attempts to remove transgender service members from the military and prevent them from enrolling; and an executive order that helped spur this change by restricting gender-affirming care.
The administration’s choice to villainize gender-affirming care, despite it being considered a best medical practice recommended by nearly every major medical group for gender dysphoria or gender incongruence, including the American Medical Association, American Academy of Pediatrics, and American Psychological Association, comes as KFF, a source for health policy research and polling data, estimates about 130,000 young trans people with Medicaid or CHIP coverage could be impacted by the policy.
“Today, we are ending federal taxpayer funding for sex-rejecting procedures on children,” U.S. Department of Health and Human Services Secretary Robert F. Kennedy, Jr., said last week when announcing the change. “These interventions carry serious risks and can cause irreversible harm. The federal government will no longer use Medicaid and CHIP dollars to fund procedures that fail to meet the evidentiary standard our children deserve.”
“Children deserve our protection, not experimental interventions that pose serious risks and convey no proven benefits,” said CMS Administrator Mehmet Oz. “By cutting off federal funds for these sex-rejecting procedures, we’re following the science, saving taxpayer dollars, and, most importantly, protecting children from potentially irreversible harm so they can truly flourish.”
The administration’s push is having a chilling effect on state healthcare legislation — more states now prohibit gender-affirming care than ever before. States with gender-affirming care restrictions jumped from four in 2023 to 27 states today.
The funding change has been met with fierce pushback from LGBTQ advocates, health experts, and government officials across the country before the rule goes into effect.
Some of the first actions against this policy began in July 2025.
Twenty-one states have attempted to restrict this effort in some fashion from going through as the White House intends. They include Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Maine, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin, as well as Pennsylvania Gov. Josh Shapiro on behalf of his state.
The coalition of attorneys general filed lawsuits challenging nine separate provisions of the final rule, arguing that they would make it harder for consumers to get coverage through the ACA, increase costs for states, and weaken key ACA protections.
The U.S. District Court for the District of Massachusetts on Aug. 15 struck down a key provision of a Trump-Vance administration final rule that would have excluded coverage of certain types of gender-affirming care as essential health benefits under the Affordable Care Act. Essential health benefits are subject to the ACA’s financial protections, including limits on out-of-pocket costs.
“Everyone deserves access to health coverage,” said California Attorney General Rob Bonta. “The Trump administration tried to exclude gender-affirming care from qualifying as an essential health benefit. We fought back, and the court’s ruling means this care can — and in many states must — qualify for the ACA’s financial protections, ensuring transgender people have an equal opportunity to benefit from the ACA.”
“The Trump administration tried to make essential care unaffordable for transgender Marylanders by stripping it out of the ACA’s cost protections,” said Maryland Attorney General Anthony Brown. “We fought to keep that care covered, and we won. My Office will always defend Marylanders’ right to the care they need.”
The final rule at issue — the “Marketplace Integrity and Affordability” rule — was proposed by the Trump-Vance administration in March 2025, purportedly to “curb ACA enrollment fraud” and reduce federal spending on subsidies that help consumers afford ACA coverage. Among other changes, the rule would have removed certain types of gender-affirming care from the ACA’s 10 essential health benefit categories.
“This president would rather target young people than lower costs or expand access to health care. It is reprehensible that our federal government is intent on hurting and isolating the adolescents it is supposed to protect. I will use every tool at my disposal to fight this proposal and protect transgender Americans and their families,” said New York Attorney General Letitia James in December after the policy was announced.
In addition to state government resistance to the change, multiple LGBTQ advocates have committed to protecting the right to healthcare for LGBTQ children.
Rocky Mountain Equality CEO Mardi Moore affirmed those in Colorado would continue to help people most at risk if the change goes through.
“First, to the families impacted by this news: you will not be cut off immediately. The rule takes effect Oct. 13, 2026, and providers can continue to bill Medicaid and CHIP for youth already receiving gender-affirming care for up to six months after that. Rocky Mountain Equality is here, and we can help you understand your options to continue your child’s care.
“This is discrimination dressed up as rule-making. Government healthcare policy should expand what people can access, not strip away care that families and doctors have already determined is medically necessary,” Moore added. “We’ve seen this pattern before with other kinds of essential care, and it rarely stops with just one restriction. Any effort to ban or limit care opens the door for more restrictions on more kinds of care.”
The Human Rights Campaign, the largest LGBTQ lobbying group in the U.S., issued multiple statements following the announcement, and has filed a similar lawsuit against the federal government for prohibiting gender-affirming care to federal employees using federal health plans.
HRC President Kelley Robinson said taking a hard stance against what the administration is presenting as a win for the American people that will ultimately restrict healthcare options for thousands of Americans.
“Every young person is entitled to the health care that they, their parents, and their medical providers agree that they need, without politicians interfering with these important and highly personal decisions. And yet, rather than working to make healthcare more affordable and accessible, the Trump administration continues to obsess over the healthcare needs of trans youth, this time by cutting off health insurance coverage for those who rely on Medicaid and CHIP to access that care,” Robinson said. “The Trump administration is terrorizing trans youth and their families with these kinds of actions, and it has to stop.”
Virginia
Winsome Earle-Sears ‘Life and Marriage Tour’ to include Northern Va. stops
Voters to consider marriage equality, reproductive rights referenda in November
Former Virginia Lt. Gov. Winsome Earle-Sears has announced her campaign against efforts to enshrine marriage equality and reproductive rights in the state constitution will make several stops in Northern Virginia.
Her “Life and Marriage Tour” will include stops in Manassas, Winchester, and Harrisonburg. Earle-Sears said the “Life and Marriage Tour” will also travel to Virginia Beach, Lynchburg, Roanoke, Charlottesville, and other cities across Virginia “throughout September and October.”
The announcement did not include specific dates.
“Virginia, you’ve been asking where the Life and Marriage Tour is headed — here’s a look at our current tour locations,” she said on X on Tuesday. “We’ll be traveling across the commonwealth throughout September and October, and we’re still building the journey.”
Current Gov. Abigail Spanberger, a Democrat, last November defeated Earle-Sears, a Republican, in the race to succeed Republican Glenn Youngkin.
Voters in 2006 approved the Marshall-Newman Amendment, which defined marriage in Virginia as between a man and a woman.
Same-sex couples have been able to legally marry in Virginia since 2014. Youngkin a decade later signed a bill that codified marriage equality in state law.
Two successive legislatures must approve a proposed constitutional amendment before it can go to the ballot.
Spanberger signed bills that finalized the marriage equality and reproductive rights referenda’s language.
The referenda will take place on Nov. 3.
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White House targets gender-affirming care funding, states fight back
Winsome Earle-Sears ‘Life and Marriage Tour’ to include Northern Va. stops
