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Fed’l benefits issues linger post-DOMA for gay couples

Questions remain on Social Security, taxes, veterans benefits and family leave

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Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade
Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

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.”

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Texas

Anti-trans Texas Democrat loses primary to queer woman

Lauren Ashley Simmons defeated state Rep. Shawn Thierry

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Texas state Rep. Shawn Thierry, picture from a public feed, and Lauren Ashley Simmons, picture courtesy of the LGBTQ+ Victory Fund.

BY ERIN REED | Houston Democratic Texas House of Representatives incumbent Shawn Thierry was trounced in a primary runoff election on Tuesday.

Thierry was one of only a handful of Democrats across the country who broke ranks with her party and voted for a ban on gender-affirming care for transgender youth, delivering a lengthy and misinformation-filled speech in doing so.

After her anti-trans vote, queer union organizer Lauren Ashley Simmons stepped forward to unseat her, earning dozens of influential endorsements from party leaders and organizations. On Tuesday night, Simmons left no doubt about her victory: She resoundingly won by a 65-35 percent margin.

On May 12, Thierry voted to pass a gender-affirming care ban for trans youth, an exceedingly rare vote for a Democrat. In doing so, she spoke on the House floor, calling trans girls “biological males” and arguing that conversion therapy was the true solution to gender dysphoria.

She also voted against every amendment intended to mitigate the harm the bill would cause trans youth in the state. This led to a vote to censure Thierry by the Meyerland Area Democrats, who reported feeling betrayed by her earlier assurances that she was an ally to the LGBTQ community.

Thierry’s district, the 146th District of the Texas House of Representatives, is not a swing district. It includes predominantly Black and Latino neighborhoods in Houston that tend to vote heavily Democratic. Previously, Thierry had beaten a Libertarian candidate by a 87-13 percent margin, with no Republican running in the race. Thus, whoever wins the Democratic primary in the district is likely to represent the district in the Texas House of Representatives.

Enter Simmons, a queer union organizer who ran in opposition to Thierry’s anti-LGBTQ votes and activism. In her announcement that she would be challenging Thierry in the primary, Simmons stated, “Our current representative has lost her way and now votes with Greg Abbott and Republicans to take away our rights, destroy our public schools, and hurt our kids.”

Simmons quickly garnered major endorsements, an uncommon feat for a primary challenger to an incumbent politician. Equality Texas, the LGBTQ+ Victory Fund, and LPAC, all significant LGBTQ organizations, endorsed her.

She also secured major union endorsements from the American Federation of Teachers, the AFL-CIO, and the Service Employees International Union. Additional support came from Planned Parenthood, Harris County Young Democrats, and Run for Something. High-profile congressional endorsements included Congresswomen Jasmine Crockett and Lizzie Fletcher, as well as former Congressman Beto O’Rourke.

In the lead-up to the election, which was quickly becoming a referendum on whether anti-trans politics could gain a foothold in the Democratic Party, Thierry did not tone down her anti-LGBTQ sentiment. She participated in “faith walks” with major local churches supportive of her stance and relied heavily on Republican donations.

When asked about her anti-trans votes, she called gender-affirming care “Black genocide.” Thierry’s statements were decried by major community members, including Diamond Stylz Collier, who leads the Texas nonprofit Black Trans Women Inc. Collier called the comments disgusting, stating, “We have an increase of trans people dying of violence around the country and a real-life genocide happening in other parts of the globe.”

As votes poured in on Tuesday evening, it became clear that Simmons would be the victor. She secured a decisive majority, with the district voting 65-35 percent in her favor over Thierry. Reflecting on her victory, Simmons stated, “Thanks to your amazing support, we all won BIG last night! We are so grateful, and so proud of the strong message this decisive victory sends to those who seek political gain by using bigotry, hatred, and fear: STOP. Thank you!”

Increasingly, anti-trans influencers are attempting to make inroads into left-leaning politics, a strategy that has seen mixed results internationally. In the U.K., for instance, the Labour Party has been notoriously poor on trans rights.

In the U.S., however, these efforts have met with far less success. Just yesterday in California, an attempt to place a gender-affirming care ban on the ballot was defeated. Similarly, in most states, Democrats have remained steadfast against anti-transgender legislation. Now, even in a conservative state like Texas, it is evident that there is little appetite within the party for sacrificing transgender rights, and doing so could jeopardize one’s political career.

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

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The preceding article was first published at Erin In The Morning and is republished with permission.

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Delaware

Blade Foundation awards 7th Steve Elkins journalism fellowship

Joe Reberkenny will cover Delaware LGBTQ news all summer

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Joseph Reberkenny

The Blade Foundation this week announced the recipient of its 2024 Steve Elkins Memorial Fellowship in Journalism is Joseph Reberkenny, a recent graduate of American University.

He will cover issues of interest to Delaware’s LGBTQ community for 12 weeks this summer. The fellowship is named in honor of Steve Elkins, a journalist and co-founder of the CAMP Rehoboth LGBT community center. Elkins served as editor of Letters from CAMP Rehoboth for many years as well as executive director of the center before his death in March of 2018.

Kevin Naff, editor of the Blade, welcomed Reberkenny and introduced him to the Rehoboth Beach community at a recent event there. 

“We’re all excited to work with Joseph during this important election year in which Delaware is poised to make history by electing the nation’s first transgender congressperson and only the fourth Black woman U.S. Senator,” Naff said.

Reberkenny is the seventh recipient of the Elkins fellowship, which is funded by community donations at the Blade Foundation’s annual fundraiser in Rehoboth Beach. This year’s event was held May 17 at the Blue Moon and included a generous sponsorship from Realtor Justin Noble and a keynote address by Sarah McBride, a candidate for U.S. House.

“I am honored to work for the Blade and to contribute to its rich history in supporting the LGBTQ community,” Reberkenny said. “I am excited to cover Delaware’s politics, and can’t wait to amplify voices that deserve to be heard.” 

“The CAMP Rehoboth community is thrilled to know that the Washington Blade continues to support a student intern in memory of Steve Elkins,” said Kim Leisey, Ph.D., executive director of CAMP Rehoboth. 

For more information on the fellowship program or to donate, visit bladefoundation.org.

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Maryland

Turning around sex trafficking: One year after Safe Harbor in Maryland

TurnAround Inc. working to rescue youth, trans girls from exploitation

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The staff at TurnAround Inc. in Baltimore.

In 2023, the law in Maryland dictated the following: If a child was discovered to be sex trafficked during a sting operation, they were to be arrested, handcuffed, and then incarcerated as a “child prostitute.” One survivor testified to Maryland lawmakers that after being trafficked throughout College Park from ages 12 to 15, it was their ‘rescue’ by law enforcement that was the most traumatizing part of their experience.

In 40 states and in federal law, the sex trafficking of minors was already understood to be a crime committed against children, and not a crime committed by children. When Gov. Wes Moore signed the Safe Harbor law on May 16th of last year, prohibiting the criminal prosecution of sex-trafficked minors, he brought Maryland out of a legal dark age.

How do things look in Maryland a year later? The Washington Blade got in touch with TurnAround Inc., headquartered in Baltimore, to find out. TurnAround is Maryland’s first provider of comprehensive services to survivors of sexual trafficking, Baltimore’s rape crisis center, and a support center for victims of intimate partner violence and sexual violence.

Perhaps the most striking thing about TurnAround is how large of an operation it is — how large of an operation it needs to be. The organization fielded more than 10,000 calls on their hotline in 2022, conducted almost 4,000 counseling sessions, and placed 337 clients in safe shelter: nearly one for every day of the year. But the staff at TurnAround is relieved to see these numbers so high. During the pandemic, there was a steep decrease in reports of sex trafficking. 

“[COVID] had a very chilling effect on the number of trafficking survivors that were getting access to services,” said Amanda Rodriguez, executive director of TurnAround. Many of the avenues through which cases were referred to TurnAround simply shut down. The hospitals were inundated with COVID cases, and so weren’t referring anyone; the schools were closed down, and so weren’t referring anyone; and State Attorney Marilyn Mosby stopped prosecuting low-level crimes, which had the unintended consequence of limiting the opportunities law enforcement had to identify youth at risk of trafficking.

In 2020, TurnAround moved into a new office in downtown Baltimore, and it is cavernous — half the floor of a skyscraper. When you walk in, you could mistake the headquarters for a dentist’s office for how calmly the front desk attendant answers the phone. A few lines here and there give away the seriousness of their work: “Is it OK for us to leave a voicemail?” Not every caller’s phone is a safe place.

The office is flanked by a hallway of therapists on one side of the building, who focus on the inner lives of their clients, and a hallway of advocates on the other side, who focus on their outer lives: support in court, government benefits, direct outreach on the streets of Baltimore. At the center are a host of services one would think spread across the whole of the city: a computer center, a clothing donation center, storage for the goods and products needed to survive while in shelter, a kitchen for group meals, and a place to wash and dry your clothes. But the most sobering part of the office is the play center full of toys, for the children that TurnAround serves. “We have clients as young as three years old,” said Jean Henningsen, senior director of strategic initiatives. Some of these children come in as the dependents of adult survivors, but they are sometimes the victims of sexual violence themselves.

“When we were creating Safe Harbor, we looked to see how many kids had been arrested and charged by law enforcement in every county in the state,” Amanda said. “Baltimore City had the highest number at the time. This has changed since then, and is actually getting much better.” The majority of these trafficked kids were trans girls living in the Charles Village neighborhood of Baltimore — a situation that would surprise many Baltimore residents. Charles Village has a reputation for being one of the safest neighborhoods in the city. It is the neighborhood of Johns Hopkins University, which has, in an effort to assuage the concerned parents of its undergraduates, stationed security officers on many of the surrounding street corners. Despite criticism, the university recently partnered with the Baltimore Police Department to create its own police force, and has started recruiting and training officers as of this spring.

“It’s historically been a safer neighborhood for the LGBTQ community in general,” Amanda said. “I don’t know what spurred more nefarious individuals coming in and exploiting people, other than opportunity. Traffickers are just such master manipulators. They will figure out for anybody what their vulnerability is.” But these nefarious individuals are not part of some transnational crime organization. They are sometimes trans women themselves, trafficking these girls to serve their own needs in the home. Often rejected by their families and in search of community,  trans girls find this community among other trans women, and then get manipulated into sexual service.

The procedure for dealing with suspected child sex trafficking in Maryland begins with what are called “Regional Navigators,” a role established by the Child Sex Trafficking Screening and Services Act of 2019. Law enforcement agents and local departments of Social Services will notify the county’s Regional Navigator of a suspected trafficking case, and then this Regional Navigator will put together a Multi-Disciplinary Team, or MDT. The MDT consists of all agents and departments that are involved in or have some stake in the case, including Child Protective Services, Juvenile Services, law enforcement, therapists, and schools. These stakeholders will compare notes on what the youth has told them, since they will often have provided different agents and departments with competing descriptions of what’s going on. 

While the MDT procedure is highly effective for inter-departmental coordination on a given case, Stephanie Gonzalez, the Acting Regional Navigator for Howard County, explained that the system has some way to go when it comes to LGBTQ youth. “When we get referrals in general, a lot of times, it’s not mentioned how they identify,” she said. As a consequence, their data on how many LGBTQ youth are being trafficked isn’t always accurate, and these youth sometimes aren’t being handled in ways consonant with their sexual or gender identity. And even when these youth are appropriately identified, they aren’t always able to access the appropriate resources.

“We had a transgender female come to us from another state, and she had been trafficked,” Stephanie said. “We had her in a hotel while we looked for other housing options. We could not find trans-friendly housing options.” The women’s shelters they approached didn’t have the requisite training or resources. They would ask insensitive and irrelevant questions about any surgeries the girl had undergone as part of her transition, or require that she be isolated from other women for their safety. “Why are they trying to make it seem like I’m going to hurt someone,” she would ask.

But that situation is changing. TurnAround has partnered with the YWCA of Annapolis and Anne Arundel County to open up a safe house with the resources needed to support any child survivor of sex trafficking. “It’s built!” Jean said. “TurnAround will be staffing it and running it 24/7. Right now there are no children in the facility. We’re still waiting on the final licensing paperwork from the state.”

The project is expensive, with an estimated running cost of $1.5 million each year. TurnAround has partnered with Femi Ayanbadejo, a former Super Bowl winner with the Baltimore Ravens, to help coordinate fundraising. Ayanbadejo advocates for TurnAround with a deep enthusiasm—hearing him talk on the work they do, it could easily be a field-side interview in the final quarter of a game. “If we can reach five, ten, twenty, thirty, forty thousand people that we wouldn’t have with [the Blade’s] reach, maybe there’s one or two foundations that would give five, ten, a hundred, a thousand, maybe a million dollars. Who knows?”

To learn more about TurnAround’s work, visit their website at turnaroundinc.org. If you or someone you know is experiencing sexual violence, TurnAround has offices in Baltimore City, Baltimore County, and Howard County. All three offices can be reached via 410-377-8111.

CJ Higgins is a postdoctoral fellow with the Alexander Grass Humanities Institute at Johns Hopkins University.

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