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Veterans benefits for gay married couples still denied

Shinseki endorses passage of legislation to address issue

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Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).

Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).

Gay married couples are still barred from receiving veterans spousal benefits at this time despite the court ruling against the Defense of Marriage Act, according to a letter from the Department of Veterans Affairs that was obtained Tuesday by the Washington Blade.

In a letter dated Aug. 14, Secretary of Veterans Affairs Eric Shinseki says gay veterans are currently unable to receive the federal benefits of marriage because of Title 38, a portion of the U.S. code governing veterans benefits that defines spouse in opposite-sex terms independent of DOMA.

“Certain provisions in title 38, United States Code, define ‘spouse’ and ‘surviving spouse’ to refer only to a person of the opposite-sex,” the letter states. “Under these provisions, a same-sex marriage recognized by a State would not confer spousal status for purposes of eligibility of VA benefits. Although the title 38 definition of ‘spouse’ and ‘surviving spouse’ are similar to the Defense of Marriage Act (DOMA) provision at issue in United States v. Windsor, no court has yet held the title 38 definitions to be unconstitutional.”

Shinseki’s letter continues to say that the Department of Veterans Affairs is still working with the Department of Justice “to assess the impact of the Windsor decision on the continued constitutional viability” of Title 38’s and VA’s obligations with respect to those statutes.

An earlier version of this article said the Obama administration had made a determination in the wake of the DOMA decision that gay couples are ineligible for these benefits. Josh Taylor, a VA spokesperson, said the review is ongoing.

ā€œNo decisions on benefits have been made at this point,ā€ Taylor said. ā€œWe’re working with DOJ to assess Title 38 after the ruling and no conclusions have been drawn from that yet.”

However, the letter does indicate that a gay couple that marries in one state, travels to another that doesn’t recognize the union won’t be able to receive veterans benefits if they apply for them there.

“You also inquired about VA’s ability to recognize a marriage based on its validity in the state of celebration, without regard to the laws of state of residence,” Shinseki says. “A same-sex spouse whose marriage to a Veteran was valid in the state where the parties resided at the time they entered the marriage would not meet the definition under [Title 38] for purposes of VA benefits.”

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said an update to the law is needed to ensure full equality even in the aftermath of the DOMA ruling.

ā€œThe end of section 3 of DOMA unfortunately does not mean all married same-sex couples are fully equal in the eyes of the federal government no matter where they live,” Cole-Schwartz said. “We believe there is more work the administration can do to faithfully interpret the Windsor ruling in an expansive manner but as we have said before, Congressional action is needed to ensure all married couples are treated equally in all ways.ā€

Some of the spousal benefits allocated under Title 38 are disability benefits, survivor benefits and joint burial at a veteranā€™s cemetery.Ā U.S. Attorney General Eric Holder announced last year that Title 38’s restriction of benefits to opposite-sex couples is unconstitutional and the Obama administration won’t defend the law in court against challenges seeking benefits for same-sex couples.

As noted in the letter, lawsuits seeking to overturn Title 38’s prohibition on veterans benefits for same-sex spouses are Cooper-Harris v. United States, filed by the Southern Poverty Law Center, McLaughlin v. Panetta, filed by the group now known as OutServe-SLDN, and Cardona v. Shinseki.

Shinseki’s letter was in response to an inquiry from Sen. Jeanne Shaheen (D-N.H.), who made the Obama administration’s letter public on Tuesday. She’s the co-sponsor of the Charlie Morgan Act, a bill that would change U.S. code to ensure gay veterans in legal same-sex marriages can receive spousal benefits.

In a statement, Shaheen explains why the situation with Title 38 demonstrates the need for Congress to pass her legislation.

ā€œWe need to pass the Charlie Morgan Act to bring Department of Veteran Affairs benefits policy in line with the Supreme Courtā€™s ruling striking down DOMA,” Shaheen said. “Iā€™m committed to making this happen. Every individual who serves in uniform deserves access to the benefits that theyā€™ve earned and rightfully deserve. We canā€™t tolerate this type of discrimination, especially in the aftermath of a historic Supreme Court ruling that declared the Defense of Marriage Act unconstitutional.ā€

There’s already been some movement on the bill. On July 24, the SenateĀ Committee on Veteransā€™ Affairs reported out the Charlie Morgan Act by voice vote to the Senate floor.

Jeremy Johnson, co-chair of the newly formed LGBT military group SPART*A, said the onus is on the Obama administration to work to change the law if that’s what’s necessary.

“The need for change has been identified,” Johnson said. “If Mr. Shinseki’s staff has determined it is not within his department’s legal authority to change policy in a way that reflects the spirit and intent of the Windsor decision, it is incumbent upon him, as the leader charged with ensuring all veterans receive equal opportunity for the care and benefits provided by the VA, to work with the President and call upon Congress to make the necessary change to the law without delay.”

Shinseki concludes the letter by saying the Obama administration supports passage of the Charlie Morgan Act and is prepared to enact changes to the law if required.

“VA supports enactment of your bill, S. 373, the Charlie Morgan Spouses Equal Treatment Act of 2013, to remove the requirement that a Veteran’s “spouse” or “surviving spouse” be a person of the opposite sex,” the letter states. “Should the title 38 spousal definitions be revised or determined to be unconstitutional, VA will be prepared to update its policies and systems in a timely manner and ensure that the delivery and quality of Veteran’s benefits remain at the highest standards.”

CORRECTION: An earlier version of this article stated the VA had already made a determination that gay married veterans wouldn’t be able spousal benefits under Title 38. The Blade regrets the error.

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Congress

House passes spending bill as Greene threatens to oust Johnson

51 of 52 anti-LGBTQ riders were defeated

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Rep. Marjorie Taylor Greene (R-Ga.) speaks at a press conference on Sept. 20. (Washington Blade photo by Michael Key)

The U.S. House of Representatives averted a government shutdown on Friday with a vote of 286-134 to pass the $1.2 trillion spending bill, over the objections of hard-right members like U.S. Rep. Marjorie Taylor Greene (R-Ga.).

The congresswoman subsequently filed a motion to remove House Speaker Mike Johnson (R-La.), who is himself an ultraconservative legislator. The move marked the second time in six months that the party has called for a vote to oust their own leader.

ā€œToday I filed a motion to vacate after Speaker Johnson has betrayed our conference and broken our rules,ā€ said Greene, who refused to say whether she would call up the resolution to call for a snap vote, which likely means the matter will be delayed until after the two-week recess.

Greene and Johnson are at odds over the content of the minibus appropriations package, with the congresswoman calling it a “Chuck Schumer, Democrat-controlled bill” that does not contain conservative policy demands on matters like immigration and LGBTQ issues.

The speaker, meanwhile, proclaimed, ā€œHouse Republicans achieved conservative policy wins, rejected extreme Democrat proposals, and imposed substantial cuts while significantly strengthening national defense.ā€

With respect to anti-LGBTQ riders submitted by Republican members, more than 50 were ultimately stripped from the bill, which the Human Rights Campaign celebrated as “a victory,” crediting lawmakers for their “bipartisan, bicameral negotiations.”

Of the 52 anti-LGBTQ riders, only one survived in the $1.2 trillion package passed on Friday: A ban on flying Pride flags at U.S. embassies.

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Congress

Massive defeat for anti-trans, anti-LGBTQ riders in spending bill

Proposal has only one rider that would target community

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U.S. Capitol
U.S. Capitol (Washington Blade photo by Michael Key)

On Thursday, Congress unveiled the much-anticipated spending bill to avert a government shutdown. The bill, which includes funding for major government departments such as Health and Human Services and Education, featured fierce negotiations over conservative ā€œpolicy riders.ā€ 

These policy riders included bans on coverage for gender-affirming care, DEI bans, sports bans and more. Despite some indications that Democrats might compromise due to the sheer number of conservative policy riders, it appears those fears did not come to fruition. Democrats held firm in negotiations, and the most impactful anti-trans and anti-LGBTQ riders were nowhere to be found.

One policy rider proposed for the Food and Drug Administration would have defunded any hospital that ā€œdistributes, sells or otherwise uses drugs that disrupt the onset of puberty or sexual development for those under 18,ā€ a measure targeting not only transgender youth but also those experiencing precocious puberty. 

Another rider sought to bar any government funding toward ā€œsurgical procedures or hormone therapy for the purposes of gender-affirming careā€ in the Department of Health and Human Services. This move would have significantly impacted private and subsidized insurance in the Healthcare Marketplace. It also aimed to bar the enforcement of President Joe Bidenā€™s executive order titled ā€œPreventing and Combating Discrimination on the Basis of Gender Identity,ā€ which broadened anti-discrimination protections for trans individuals.

Additional riders included bans on funding for any organization thatĀ ā€œpromotes transgenderism,ā€Ā Title IX protections for trans youth, bans on legal challenges against states over anti-LGBTQ+ laws, book bans, DEI bans and more.

In total, over 40 riders were proposed and negotiated in the spending bills. None of these were found in the final bill.

Ultimately, the final spending bill released contained only a single anti-LGBTQ rider: A ban on Pride flags being raised or displayed above foreign embassies. The policy, while certainly qualifying as anti-LGBTQ and a regression to Trump-era policies, notably does not bar personal displays of Pride flags by embassy workers.

In the past, some embassies have gotten around such bans by not ā€œflying a flag over the embassyā€ but rather, painting portions of the embassy in rainbow colors or draping flags on the side of buildings.

News of the defeat of the most impactful anti-trans and anti-LGBTQ riders comes after a significant push from Equality Caucus Democrats and the Biden administration against the riders. ā€œAs you negotiate government funding for Fiscal Year 2024 (FY24), we write to strongly urge you to reject any attempts to include anti-LGBTQ+ provisions in any final FY24 funding agreement,ā€ said a letter signed by 163 representatives on behalf of the Congressional Equality Caucus to the Biden administration.

However, Republicans also pushed hard for their inclusion. In a shutdown threat issued Feb. 21 from the House Freedom Caucus, Republicans indicated that bans on gender affirming care and trans participation in sports were necessary to prevent a potential shutdown.

Previously, U.S. Dan Crenshaw (R-Texas) stated that such bans are the “hill we will die on.” In a report published by Axios, one Republican lawmaker stated, ā€œPeople are predicting a shutdown even if it’s just for a few days.ā€ Others concurred, citing gender affirming care riders as one of the potential reasons for such a shutdown.

Many anti-LGBTQ leaders in the Republican Party reacted negatively to the bill. U.S. Rep. Matt Gaetz (R-Fla.)Ā expressed angerĀ at funding for the New Jersey Garden State Equality in Education Fund, calling it ā€œforce feeding the LGBT agenda in schoolsā€ and stating that it enables ā€œgender mutilation surgeries in minors,ā€ ā€œbiological menā€ in womenā€™s bathrooms and trans participation in sports.

U.S. Rep. Marjorie Taylor Greene (R-Ga.) decried the lack of a DEI ban. U.S. Rep. Andrew Clyde (R-Ga.) stated that Republicans ā€œsurrenderedā€ to Democrats on hormone therapy. The House Freedom Caucus published a lengthy list of healthcare and equality centers that the budget would fund, urging the GOP to vote ā€œnoā€ and to shut down the government.

In a press release published by House Appropriations Democrats, they stated that the bill rejected over a hundred poison-pill riders, many of which targeted LGBTQ people. For example, the Labor-HHS-Education portion of the bill blocked provisions around gender affirming care, sports bans and nondiscrimination.

See the House Appropriations Democrats statement:

Press release, House Appropriations Democrats on Labor-HHS-Education

The bill must pass by Friday evening to avert a government shutdown, though the impacts of such a shutdown would likely not be felt until Monday. If passed, the bill would keep the government funded through September, at which point all of the riders could resurface during the peak of the 2024 presidential election.

However, for the next several months, LGBTQ riders will not pose a significant threat in a year where trans and queer individuals have faced attacks at historic levels.

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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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Congress

Padilla, FCC introduce measure to improve 988 Suicide and Crisis Lifeline

HHS launched effort in 2022

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U.S. Sen. Alex Padilla (D-Calif.) (Screen capture: YouTube)

U.S. Sens. Alex Padilla (D-Calif.) and Thom Tillis (R-N.C.), joined by U.S. Rep. Tony CƔrdenas (D-Calif.), Federal Communications Commission Chairwoman Jessica Rosenworcel and U.S. Secretary of Health and Human Services Xavier Becerra, introduced a measure on Thursday to improve the 988 Suicide and Crisis Lifeline.

Calls are currently routed to mental health professionals and local public safety officials based on the caller’s area code ā€” even though, as the lawmakers and officials noted during their announcement ā€” in many cases, the area code, especially for cell phone numbers, does not match the location from which they are calling.

Under the new proposal, Padilla said, “We’re going to be in a position to be able to provide care as quickly and as safely as possible.”

“In the same way that 911 calls in the case of an emergency are routed to local providers, local first responders, so ambulances can come out and help quickly when you call 911, 988 should be tied to a caller’s location, not their area code,” he said.

Calling Padilla, Tillis, and CĆ”rdenas “great champions of mental health,” Rosenworcel noted, “that’s not our stock and trade” at the FCC.

“We are people who deal with technology and communications,” she said, “but we came to realize that we could work with Congress to make sure that everyone in this country who’s going through a crisis has someone to call and someone who can listen ā€” and that’s why in 2022, we set up 988, the easy-to-remember three digit number for anyone who is in crisis.”

A press release from Padilla’s office explains the details for how the update to the 988 Suicide and Crisis Lifeline will work:

“The Notice of Proposed Rulemaking (NPRM) announced today seeks to address the discrepancies and inefficiencies of the current system by proposing the adoption of a rule that would require a georouting solution to be implemented for all wireless calls to the 9-8-8 Lifeline while balancing the privacy needs of individuals in crisis. 

Georouting refers to technical solutions that enable calls to be directed based on the location of the caller without transmitting the callerā€™s precise location information.Ā These solutions would permit wireless calls to the 9-8-8 Lifeline to be directed to nearby crisis centers based on factors such as the cell tower that originated the call rather than the area code of the wireless device used to place the call.”

The 988 Suicide and Crisis Lifeline offers LGBTQ-affirming counseling, which is accessible by pressing three.

A 2023 survey by the Trevor Project, which included more than 28,000 LGBTQ participants aged 13-24, found that 41 percent had seriously considered suicide within the past year and 56 percent wanted ā€” but were unable to get ā€” mental health care within the last year.

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