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.”
U.S. Supreme Court
Supreme Court to consider bans on trans athletes in school sports
27 states have passed laws limiting participation in athletics programs
The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.
In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.
The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”
In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.
The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.
“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.
He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”
“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”
Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”
Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.
Virginia
Va. court allows conversion therapy despite law banning it
Judge in June 30 ruling cited religious freedom.
In 2020, the state of Virginia had banned the practice of conversion therapy, but on Monday, a county judge ruled the ban violates the Virginia Constitution and Religious Freedom Restoration Act, allowing the therapy to start once more.
The conversion therapy ban, which can be seen in Va. Code § 54.1-2409.5 and 18VAC115-20-130.14, was overturned on June 30 as a result of two Christian counselors who argued that their — and all Virginia parents’ — constitutional right to freedom of religion had been encroached upon when the state legislature passed the ban.
A Henrico County Circuit Court judge sided with John and Janet Raymond, two Christian counselors represented by the Founding Freedoms Law Center, a conservative organization founded in 2020 following Virginia’s conversion therapy ban. Virginia’s Office of the Attorney General entered a consent decree with FFLC, saying state officials will not discipline counselors who engage in talk conversion therapy.
Conversion therapy, as the legislation described it, is considered to be “any practice or treatment that seeks to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender.” The ban’s reversal will now allow parents to subject their children to these practices to make them align better with their religion.
This decision comes despite advice and concern from many medical and pediatric organizations — including the American Psychiatric Association, American Psychological Association, American Association for Marriage and Family Therapy, and the American Counseling Association, to name a few — all of which denounce conversion therapy as dangerous and harmful to those subjected to it.
The American Medical Association, the largest and only national association that convenes more than 190 state and specialty medical societies, says that “these techniques are the assumption that any non-heterosexual, non-cisgender identities are mental disorders, and that sexual orientation and gender identity can and should be changed. This assumption is not based on medical and scientific evidence,” with attached data indicating people subjected to conversion therapy are more likely to develop “significant long-term harm” as a result of the therapy.
The AMA goes as far as to say that they outright “oppose the use of reparative or conversion therapy for sexual orientation or gender identity.”
FFLC has a clear goal of promoting — if not requiring — conservative ideology under the guise of religious freedom in the Virginia General Assembly. On their website, the FFLC argues that some progressive policies passed by the Assembly, like that of freedom from conversion therapy, are a violation of some Virginians’ “God-given foundational freedoms.”
The FFLC has argued that when conservative notions are not abided by in state law — especially when it involves “God’s design for male and female, the nuclear family, and parental rights” — that the law violates Virginians’ religious freedom.
A statement on the FFLC’s website calls gender dysphoria among children a “contagion” and upholds “faith-based insights” from counselors as equal — in the eyes of the law — to those who use medical-based insights. This, once again, is despite overwhelming medical evidence that indicates conversion therapy is harmful.
One study showed that 77 percent of those who received “sexual orientation change efforts,” or conversion therapy, experienced “significant harm.” This harm includes depression, anxiety, lowered self-esteem, and internalized homophobia. In addition, the study found that young LGBTQ adults with high levels of parental or caregiver rejection are “8.4 times more likely to report having attempted suicide,” with another study finding that “nearly 30 percent of individuals who underwent SOCE reported suicidal attempts.”
Virginia Senate Majority Leader Scott Surovell, a Democrat representing Fairfax, said that the overturning of the ban on religious merit disregards the entire concept of having professionally licensed counselors.
“I have no problem if somebody wants to go look at religious counseling from their priest or their minister, their rabbi, their imam — that’s perfectly fine,” Surovell told the Virginia Mercury. “When somebody goes to get therapy from somebody licensed by the commonwealth of Virginia, there’s a different set of rules applied. You can’t just say whatever you want because you have a license. That’s why we have professional standards, that’s why we have statutes.”
Obituary
Longtime DC resident Thomas Walsh dies at 87
Pa. native’s husband was by his side when he passed away
Long-time D.C. resident Thomas Walsh died on May 16. He was 87.
Walsh was born on Sept. 17, 1937, in Scranton, Pa. His family later moved to Levittown, Pa.
Walsh met his husband, Anthony Carcaldi, at the Blue Note, a gay bar in Asbury Park, N.J., in 1964.
“I walked in the bar with friends from New York City,” recalled Carcaldi. “I looked at the piano and this person was singing … and all I noticed were his blue eyes.”
Walsh was singing “Because of You.”
“I walked up to the piano while Tom was singing and stared at him, which caused him to forget the words,” said Carcaldi. “He composed himself and started from the beginning.”
Carcaldi and Walsh became a couple in 1965, a year after they met, when they moved to Philadelphia.
“We moved in together and have been together ever since,” said Carcaldi.
Walsh was a freelance graphic designer until he accepted a job in Temple University’s audiovisual department. Walsh and Carcaldi moved to D.C. in 1980.
Walsh began a graphic design business and counted Booz Allen as among his clients. Carcaldi said one of his husband’s “main loves was painting,” and became a fine artist in 2005.
Walsh showed his art at the Nevin Kelly Gallery on U Street, the Martha Spak Studio near the Wharf, and at the Wexler Gallery in Philadelphia. Walsh also sang with the Gay Men’s Chorus of Washington.
Walsh and Carcaldi married at D.C. City Hall in 2014.
“Tom and I have been together since 1964 until his death,” said Carcaldi. “Tom died peacefully with me at his side in bed on May 16, 2025, holding Tom in my arms as he made the transition out of life.”
A celebration of life will take place in September.
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