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End of DOMA raises concerns about lingering inequities

Social Security, military benefits could remain problematic after court decision

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Supreme Court, gay news, Washington Blade
Supreme Court, gay marriage, marriage equality, Proposition 8, gay news, Washington Blade

Issues for married same-sex couples may remain even if the Supreme Court strikes down DOMA. (Washington Blade photo by Michael Key)

While many same-sex couples throughout the country have high hopes that a U.S. Supreme Court ruling striking down the Defense of Marriage Act would mean their marriages would finally have legal status in the eyes of the federal government, certain problems may persist even if the court kills the law.

Depending on the scope of a Supreme Court ruling against Section 3 of DOMA, areas of the law in which couples may continue to face challenges include Social Security benefits — especially if a couple moves to a state that doesn’t recognize their marriages — as well as spousal benefits when one party of the couple is a member of the military, although the immigration issue preventing bi-national couples from staying together in the United States is expected to cease immediately.

Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said prior to oral arguments one issue in a post-DOMA world is Social Security benefits if a same-sex couple marries in one state and moves to another where their union isn’t recognized. The survivor benefits given to spouses upon the death of their loved ones is among the more than 1,000 federal benefits withheld from married gay couples under DOMA.

“Say you are married in Massachusetts … and you apply for Social Security in Massachusetts, there would be no doubt with DOMA gone, that your spouse is a spouse for Social Security purposes,” Bonauto said. “However, should you relocate to Florida and apply for Social Security benefits there, it’s more of a problem because Social Security law is going to look at the validity of the marriage at the time you apply for benefits, so your state of residence at the time you apply really matters.”

Bonauto added the aftermath of a ruling striking down DOMA may create “a patchwork” that in some situations would make same-sex marriage dependent on their state validity. Ironing out this patchwork, she said, would take either more litigation, legislation or advocacy within the administration to make changes.

“The overwhelming majority of federal programs don’t specify what state law applies, so it may just be for some situations, a matter of some guidance coming for the agencies that say whether you’re married for a particular benefit,” Bonauto added. “That’s a very practical nuts-and-bolts thing that, you know, we don’t have the luxury of worrying about right now because DOMA is still on the books.”

Susan Silber, a lesbian Takoma Park-based lawyer who specializes in family law for gay couples, said a ruling could affect gay couples differently if the court strikes down DOMA but leaves the constitutional right to marry in the case against California’s Proposition 8 an open question.

“Let’s say a couple was married for 30 years, but because they couldn’t get married until two years ago, it would look technically like they’ve only been married for two years,” Silber said. “But when they’re now dividing up their property, will courts say, ‘Oh you’ve only been married two years, there’s not a lot of marital property to buy?’ or will the court recognize that longer-term relationships deserve some recognition and do some kind of equity based on the non-technical part.”

The Human Rights Campaign didn’t respond to requests for comment on lingering issues for married gay couples.

But the general agreement is that the Respect for Marriage Act, legislation designed to repeal DOMA, would address lingering problems regarding state validity because of the “certainty clause” in the bill. Under that provision, gay couples that legally marry in one jurisdiction would be assured federal benefits even if they move to another state that doesn’t recognize same-sex marriage. The Respect for Marriage Act has yet to be introduced in the 113th Congress.

Sen. Tammy Baldwin (D-Wis.) said during a Blade interview on Monday that she thinks the Respect for Marriage Act could see additional co-sponsors in the wake of so many legislators coming out for marriage equality, but certain bills may have to be rewritten in the aftermath of a court ruling striking DOMA before going forward.

“I think that trend is a very positive one, and, yet, once the Supreme Court in June announces its decision in these two cases, we’re going to have to read those decisions very carefully, understand their reach, impact and then go about the task of looking at their impact on pending legislation,” Baldwin said. “So it may mean that certain things need to be re-written. And that will be a joyous task if we made progress, but we still have a little bit more to go.”

Jon Davidson, legal director or Lambda Legal, was optimistic adjustments could be made, saying the federal government has had to determine previously whether to recognize certain marriages and disputed any notion advanced by DOMA proponents that overturning the law would create a legal mess.

“It’s very important that it be understood that that argument is baseless, as this issue has always existed without creating undue burdens for the federal government,” Davidson said. “For example, some states allow first cousins, or uncles and nieces and aunts and nephews, to marry, and some other states will not allow couples that closely related to marry and will not recognize marriages like those entered in other states as valid for purposes of their own state law.”

Another piece of legislation may be necessary to address the benefits issue for gay service members with same-sex spouses. Sections of U.S. code governing benefits for U.S. service members define marriage as one man, one woman independent of DOMA. Titles 10, 32 and 37 are controlled by DOMA in terms of their definition of marriage, but Title 38, which addresses veterans benefits, defines “spouse” and “surviving spouse” in similar terms and restricts the definitions of persons to the “opposite sex.”

Sen. Jeanne Shaheen (D-N.H.), who sponsors legislation known as Charlie Morgan Act that would afford benefits to gay troops, said in a statement to the Blade that she’s prepared to push forward with the bill in the event that the Supreme Court ruling doesn’t address this issue.

“The Charlie Morgan Act would amend the definition of ‘spouse’ in the federal code in four areas and in turn grant same-sex military couples many benefits that they’ve rightfully earned,” Shaheen said. “Depending on how the Supreme Court rules on DOMA, legislation like this could still be necessary to ensure fairness and equality for all our men and women serving in uniform. Regardless of how the Supreme Court rules, I will continue to work with my colleagues on behalf of our LGBT servicemen and women, and their families, because no one should be denied benefits due to their sexual orientation.”

There may be other difficulties as well. A blog posting Monday from National Public Radio’s Michelle Andrews speculates that married gay couples may have trouble covering their families with company insurance, although many businesses are pre-emptively addressing the issue.

“If a same-sex couple both lives and works in the District there may not be insurance difficulties,” Andrews writes. “But what if one of them works in Virginia, where same-sex marriage isn’t recognized? If a Virginia-based employer doesn’t voluntarily provide benefits to same-sex spouses, the employee might not be able to insure a spouse even though they’re legally married in the state where they live.”

But one issue that’s expected to immediately go away in the inability of gay Americans to sponsor their spouses for residency in the United States via a marriage-based green card application. Each time when asked to address the issue, the Obama administration has cited Section 3 of DOMA — and only Section 3 of DOMA — as the reason why sponsorship of a foreign spouse is unavailable for gay couples.

Lavi Soloway, a gay immigration attorney and founder of The DOMA Project, explained during a conference call last week that gay Americans should be able to sponsor their same-sex couples for residency in the United States immediately after the law is struck down.

“The moment the Defense of Marriage is struck down, green card petitions filed by same-sex married couples can be approved,” Soloway said. “There’s no other barrier; we’ve established that by filing 70 green card petitions over the last three years, we’ve established that with 40 appeals to the Board of Immigration Appeals, we’ve established that with 10 remanded cases from the Board of Immigration Appeals. The government’s position is that the law prevents same-sex couples from access only because of Section 3 of the Defense of Marriage Act. I’ve no expectation that the Obama administration will have any different opinion the day after DOMA is struck down — if that happens.”

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National

Anti-trans visa ruling echoes Nazi regime destroying trans documents

Trump administration escalates attacks on queer community

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The Trump administration has moved from identifying trans people as as threat to the family to claiming that trans people are a threat to the spiritual health of the nation. (Washington Blade photo by Michael Key)

The Lemkin Institute for Genocide Prevention and Human Security earlier this month released its third Red Flag Alert for the United States about the Trump administration’s anti-trans legislation. As the Lemkin Institute shared in the press release, “the Administration has moved from identifying transgender people as as threat to the family and to the nation’s military prowess to claiming that transgender people constitute a cosmic threat to the spiritual health of the nation and the great direct threat to the US national security in the world.”

The news came the same day that the State Department issued a new rule, “Enhancing Vetting and Combatting Fraud in the Immigrant Visa Program.” Under this new guidance, all visa applicants are required to disclose their “biological sex at birth” during all stages of the process, “even if that differs from the sex listed on the applicant’s foreign passport or identifying documentation.” 

This rule also orders that applicants to the green card lottery program share their passport information, so in knowingly collecting passport information that the agency knows will not match a person’s biological sex at birth, it’s creating grounds to deny trans peoples’ biases on the basis of “fraud,” Aleksandra Vaca of Transitics explains.

As is written in the new ruling, “the Department is replacing ‘gender’ with ‘sex’ in accordance with E.O. 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which provides that the term ‘sex’ shall refer to an individual’s sex at birth. Only male and female sex options are available for entrants completing the Diversity Visa entry form.” 

Along with outright denying the existence of nonbinary, genderqueer and gender expansive people, this policy creates a precedence for trans people to be stripped of their visas and deported because under 8 U.S.C. § 1182(a)(6)(C)(i), any foreigner found to have obtained or possess a visa “by fraud or willfully misrepresenting a material fact” will have their visa revoked and face deportation. 

By requesting information on “biological sex at birth,” the State Department is forcing a mismatch between documents and enabling officials to accuse trans, nonbinary, and gender expansive immigrants of fraud. Thus, trans and nonbinary immigrants can have their visas revoked and can be deported, and information gathered from immigrants during the visa request process can be added to federal databases and used by immigration authorities, including ICE agents. 

With the Supreme Court’s decision this past year allowing ICE officers to use racial profiling, Vaca argues that “now, The Trump administration has given ICE the reason it needs. Under this rule, ICE agents now have the enforcement rationale to assert that trans people–especially those belonging to racial minority groups–are more likely than cis people to have ‘misrepresented’ themselves during the visa process, and therefore, are more likely to enter the country ‘unlawfully.’”

This would enable ICE agents to target trans individuals specifically for being trans. If the goal of this were unclear, a day later the Trump administration released its statement for Women’s History Month 2026, writing that “we are keeping men out of women’s sports, enforcing Title IX as it was originally written and ensuring colleges preserve–and, where possible, expand–scholarships and roster opportunities for female athletes. We are restoring public safety and upholding the rule of law in every city so women, children, and families can feel safe and secure.”

And this is not the first time that ICE has targeted and harmed trans and nonbinary immigrants. Last June, Vera reported that ICE is not including trans people in detection in their public reports, and back in 2020, AFSC reported that trans people held in ICE detention faced “dreadful, ugly” conditions. 

While it seems like a new development in Trump’s anti-trans escalation, it echoes a deeply upsetting history of denying and destroying transgender people’s documents following members of the Nazi party seizing power in 1933. 

In the early 20th century, Weimar, Germany was an epicenter for gender affirming care with Maganus Hirschfeld’s Institute for Sexual Science. One of the first book burnings of the rising Nazi regime destroyed the Institute’s extensive clinical records and library on trans health and history by Nazi students and stormtroopers. In doing so, the Nazis effectively destroyed the world’s first trans health clinic and one of the richest and most comprehensive collective of information about trans healthcare. 

Similarly, the Nazi government invalidated or refused to recognize what was called “transvestite passes,” or passing certificates that allowed trans people to avoid arrest under Paragraph 175 which prohibited cross-dressing. During the Weimar Republic — the regime that preceded the Third Reich — recognized and affirmed the identities of trans people (in limited ways) with specific documentation that helped prevent them from arrest. Invalidating and disregarding these passes allowed police and Nazi officials to target trans people and harass, extort and arrest them, and the record of passes themselves helped officials target trans people. 

The changes to visa guidelines — alongside Kansas’s move to revoke trans drivers’ licenses last month — is reflective of this escalation of violence against trans people during the Nazi’s rise to power, which scholars like Dr. Laurie Marhoefer is just beginning to uncover. And along with the revocation of identification documents this past week, a recent Fourth Circuit Court ruled that states can deny Medicaid coverage for gender-affirming surgery.

The Fourth Circuit Court decision affirmed the Supreme Court’s decision in Skrmetti, which ruled that bans on gender affirming healthcare for young people are constitutional. This ruling extends this ban to include adult healthcare bans, allowing West Virginia’s exclusion of Medicaid coverage for adult gender affirming healthcare to take full effect. Even more upsetting was what the ruling itself said, calling gender affirming healthcare “dangerous.” 

As was written in the Fourth Circuit Opinion, “it’s not irrational for a legislature to encourage citizens ‘to appreciate their sex’ and not ‘become disdainful of their sex’ by refusing to fund experimental procedures that may have the opposite effect.” 

In reality, what this ruling and the opinion reflect, is the next step in government regulation and oversight over marginalized peoples’ bodies. From the overturn of Roe v. Wade, which removed federal protection of access to abortion, this next step represents the denial of people’s access to vital, lifesaving care–and to be clear, gender affirming care is not just for trans, nonbinary, and intersex people. It’s a dangerous escalation and one that echoes previous violence against trans people under fascist regimes; the Lemkin Institute is right to raise concern.

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Pennsylvania

Pa. House passes bill to codify marriage equality in state law

Governor supports gay state Rep. Malcolm Kenyatta’s measure

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Pennsylvania Capitol Building (Washington Blade file photo by Michael Key)

The Pennsylvania House of Representatives on Wednesday passed a bill that would codify marriage equality in state law.

House Bill 1800 passed by a 127-72 vote margin. Twenty-six Republicans voted for the measure.

The Republican-controlled Pennsylvania Senate will now consider the bill that state Rep. Malcolm Kenyatta (D-Philadelphia), who is the first openly gay person of color elected to the state’s General Assembly, introduced. Democratic Gov. Josh Shapiro supports the measure.

“Here in Pennsylvania, we believe in your freedom to marry who you love,” said Shapiro on Wednesday. “Today, the House has stepped up to protect that right.”

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Florida

DeSantis signs emergency bill that restores Fla. ADAP funding

Temporary funds to last through June 30

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Republican Florida Gov. Ron DeSantis (Screen capture/NBC News)

After the Florida Department of Health made huge cuts to the AIDS Drug Assistance Program in January, Republican Gov. Ron DeSantis has signed emergency legislation restoring HIV access to more than 12,000 Floridians.

Two months ago, as the Washington Blade reported, the Sunshine State cut the vast majority of those in ADAP by shifting the income levels required for eligibility — without following standard procedure when changing government policy outside of legislative or executive action.

The bill, signed by DeSantis on Tuesday, passed both chambers of the Florida Legislature unanimously and appropriates $30.9 million in emergency bridge funding through June 30, 2026. It restores Florida’s ADAP income eligibility to 400 percent of the Federal Poverty Level — the level it was prior to the January cuts. The legislation also requires the FDOH to submit detailed monthly financial reports to legislative leadership beginning April 1.

Under the old policy, eligibility would have been limited to those making no more than 130 percent of the federal poverty level, or $20,345 per year.

“For 10 weeks, 12,000 Floridians living with HIV did not know if they could fill their next prescription. Today, they can,” Esteban Wood, director of advocacy and legislative affairs at AIDS Healthcare Foundation, said in a statement.

The detailed reports now required to be sent to legislative leadership must include all federal revenues and expenditures, including manufacturer rebates; enrollment figures by county and insurance status; prescription utilization by drug class; and any projected funding shortfalls. This is the first time the Legislature has required this level of financial transparency from the program.

DeSantis signed the legislation one day after a Leon County Circuit Court judge denied AIDS Healthcare Foundation’s request for an injunction to block the significant changes the DeSantis administration is making to the program, which it claims faces a $120 million shortfall for calendar year 2026.

AIDS Healthcare Foundation, a national organization focused on protecting and expanding HIV healthcare access and prevention methods, filed a lawsuit over the change in eligibility, arguing the Florida Department of Health did not follow the laid out path for formally changing policy and was acting outside established procedures.

Typically, altering eligibility for a statewide program requires either legislative action or adherence to a multistep rule-making process, including: publishing a Notice of Proposed Rule; providing a statement of estimated regulatory costs; allowing public comment; holding hearings if requested; responding to challenges; and formally adopting the rule. According to AIDS Healthcare Foundation, none of these steps occurred.

The long-term structure of ADAP will be determined by the 2026–2027 fiscal year state budget, something that lawmakers have until June 30 to finish.

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