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New guidance grants gay couples access to pension benefits

Policy applies even in states that don’t recognize same-sex marriage

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Thomas Perez, Civil Rights Division, Justice Department, gay news, Washington Blade

Labor Secretary Thomas Perez has issued new guidance for giving gay couples health care and pension benefits (Washington Blade file photo by Michael Key).

Gay workers are now fully eligible to participate with their spouses in employer-provided health care and pension benefits plans organized under federal law — even if they live in a state that doesn’t recognize their marriage — thanks to new guidance issued in the aftermath of the Supreme Court decision against the Defense of Marriage Act.

On Wednesday, the Labor Department issued guidance stating that the definition of “spouse” and “marriage” would now include married gay couples under the Employee Retirement Income Security Act of 1974.

“This is the most natural reading of those terms; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term ‘spouse’; and a narrower interpretation would not further the purposes of the relevant statutes and regulations,” the guidance states.

Most large corporations operating in multiple states organize their health care and pension plans under ERISA to bypass state laws and achieve a standardized system for employees working across the country. Whereas previously a company would not have recognized an employee’s same-sex spouse as a beneficiary, from this point forward, the spouse will now be designated as such.

Labor Secretary Thomas Perez noted the significance of the Windsor decision in a statement accompanying the news of the guidance.

“This decision represents a historic step toward equality for all American families, and I have directed the department’s agency heads to ensure that they are implementing the decision in a way that provides maximum protection for workers and their families,” Perez said. “The department plans to issue additional guidance in the coming months as we continue to consult with the Department of Justice and other federal agencies to implement the decision.”

According to the guidance, couples will be eligible for participating in ERISA programs even if they marry in one state and move to another where their marriage isn’t recognized under state law. The guidance describes why this interpretation of the court decision against DOMA is most appropriate in terms of ERISA.

“A rule for employee benefit plans based on state of domicile would raise significant challenges for employers that operate or have employees (or former employees) in more than one state or whose employees move to another state while entitled to benefits,” the guidance states. “Furthermore, substantial financial and administrative burdens would be placed on those employers, as well as the administrators of employee benefit plans.”

However, like other post-DOMA decisions from the administration, the guidance notes that couples in civil unions or domestic partnerships won’t be eligible for this federal benefit. They need a legal marriage.

“The terms ‘spouse’ and ‘marriage,’ however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law,” the guidance states.

Still, Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization is happy with the guidance.

“It’s yet another positive indication of the way in which this administration is interpreting the Windsor decision,” Sainz said.

Tico Almeida, president of Freedom to Work, commended Perez after the guidance was issued, but said his department could do more for the LGBT community by aiding transgender employees “who too often face harassment and workplace discrimination.”

“Secretary Perez should officially recognize and adopt the bipartisan EEOC decision in Macy v. Holder, and he should instruct the Labor Department to start adding transgender protections into the newly signed federal contracts that are covered by the existing Executive Order 11246,” Almeida said.

Notably, the Labor Department is providing ERISA benefits for couples in legal same-sex marriages living in states that don’t recognize those unions, but made no such clarification in earlier guidance granting couples benefits under the Family & Medical Leave Act.

Almeida also called on the Labor Department to clarify this earlier guidance to grant couples FMLA benefits nationwide.

“It’s great that the Labor Department has adopted the ‘state of celebration’ rule so that gay and lesbian couples from Texas can go to California to get married and then have ERISA protections at their Texas jobs, and the Labor Department now needs to re-write the Family Medical Leave Act regulations to adopt that same ‘state of celebration’ rule so that all married couples — no matter where they live — can have job protections when a same-sex spouse is diagnosed with a serious illness,” Almeida said.

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First lady warns Trump is ‘dangerous to the LGBTQ community’ at HRC event

Jill Biden spoke in Arlington, Va., on Friday

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Human Rights Campaign President Kelley Robinson introduces the First Lady Dr. Jill Biden at the Human Rights Campaign's Equality in Action event on Friday, April 12, 2024 in Arlington, Va. (Kevin Wolf/AP Images for Human Rights Campaign)

Delivering a keynote address at the Human Rights Campaign’s Equality in Action event Friday, First lady Jill Biden warned former President Donald Trump is “a bully” who is “dangerous to the LGBTQ community.”

Her appearance at the three-day volunteer and board gathering at the Sheraton Pentagon City in Arlington, Va., comes as part of the Biden-Harris reelection campaign’s “Out for Biden” program, which aims to “mobilize LGBTQ+ voters, communities, and leaders across the country.”

“Today, this community is under attack,” Biden said. “Rights are being stripped away. freedoms are eroding. More and more state laws are being passed targeting this community. Just last month, we had to fend off more than 50 anti-gay amendments that Republicans tried to force into the government funding bill.”

“These were extreme measures aimed directly at this community — measures that would have limited health care and weakened protections for same sex couples,” she said. “And they served only one purpose to spread hate and fear.”

In a nod to her long career as an educator, Biden said, “History teaches us that our rights and freedoms don’t disappear overnight. They disappear slowly. Subtly. Silently.”

She continued, “A book ban. A court decision. A ‘Don’t Say Gay’ law. One group of people loses their rights and then another. And another. Until one day you wake up and no longer live in a democracy … This is our chapter of history and it’s up to us how it ends.”

Biden then highlighted some of the advancements for LGBTQ rights secured under the Biden-Harris administration.

“Thanks to President Biden, marriage equality is now the law of the land,” she said. “He ended the ban on gay and bisexual men donating blood. He’s made it possible for trans Americans to serve openly and honorably in our military. And he’s standing firmly against conversion therapy.”

“Yes, there are forces outside these walls that are trying to erase these hard fought gains, trying to unwind all the progress that we’ve made,” Biden said. “They want to take our victories away, but we won’t let them. Your president will not let them — I will not let them.”

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‘Out for Biden-Harris’ LGBTQ-targeted campaign is launched

Several events planned in coming weeks

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President Joe Biden delivers remarks at a Pride celebration, June 10, 2023, at the White House. (Official White House Photo by Adam Schultz)

The Biden-Harris campaign on Wednesday debuted “Out for Biden-Harris,” which is a “national organizing and engagement program to mobilize LGBTQ+ voters, communities, and leaders across the country.”

Out for Biden-Harris “will train supporters to organize within their own networks and leverage messengers from the community to ensure we are meeting LGBTQ+ voters where they are,” the campaign wrote in a press release announcement.

“From drag queens to elected leaders to LGBTQ+ faith leaders, Team Biden-Harris will use a wide range of validators to communicate what’s at stake for the LGBTQ+ community in this election and why it’s critical that we vote for Joe Biden and Kamala Harris.”

The campaign also previewed some of the events and initiatives in coming weeks, which will include:

  • A virtual organizing call featuring actor Wilson Cruz, Congressman Robert Garcia, HRC President Kelley Robinson, to mobilize LGBTQ+ supporters;
  • A series of virtual relational organizing trainings focused on activating and reaching new volunteers targeting battleground voters. The campaign will be engaging trusted messengers, including high-profile and trusted messengers in the LGBTQ+ community, like Brita Filter, Danica Roem, Gina Ortiz Jones, and Rev.
  • Hosting a series of Out For Biden-Harris house parties and community events including events in Phoenix, Arizona, Ferndale, Michigan, Milwaukee, Wisconsin, Philadelphia, Pittsburgh, and Harrisburg, Pennsylvania, and Las Vegas, Nevada to mobilize supporters.
  • First Lady Jill Biden will be a featured speaker at the Human Rights Campaign Equality In Action Conference bringing together a network of 400 organizers and activists in Arlington, VA.

The campaign noted that LGBTQ voters will be “a key part” of its coalition, while 39 percent of voters consider LGBTQ equality a “make-or-break issue.”

“In 2020, nearly 11,000 LGBTQ+ volunteers mobilized to help elect President Biden and Vice President Harris,” the campaign wrote. “This year, Out for Biden-Harris will re-engage these supporters and build on their work. The program is designed around the idea that there is no better messenger to mobilize LGBTQ+ voters than their friends and neighbors to bring new supporters into our campaign.”

The Biden-Harris administration is the most pro-LGBTQ in history, and LGBTQ groups with a combined 3.8 million members have endorsed President Joe Biden’s reelection campaign.

However, “the fight for equality for all Americans is at stake this November as Trump and his allies plan to roll back the rights and freedoms of LGBTQ+ Americans,” the Biden campaign wrote. “Trump and his MAGA allies are running on an extreme, anti-LGBTQ+ agenda which would push to discriminate against the LGBTQ+ community, even going after the right to marry who you love.”

“LGBTQ+ voters are a force to be reckoned with. They were critical to our victory in 2020, and they will be critical to winning again this November,” said Biden-Harris 2024 Campaign Manager Julie Chavez Rodriguez. “That’s why we’re thrilled to launch Out for Biden-Harris, which will harness the LGBTQ+ community’s organizing prowess to reelect President Biden and Vice President Harris this November.”

Chavez Rodriguez continued, “LGBTQ+ Americans couldn’t have more at stake this election: Donald Trump and his extremist allies are running to gut LGBTQ+ rights and erase history as their top priorities. LGBTQ+ Americans deserve leaders who will fight for every American’s freedom and dignity. That’s what President Biden and Vice President Harris have done throughout their time in office, and what they will do if reelected, including pressing Congress to pass the Equality Act.”

“There has never been a more critical time to protect the rights of all Americans, no matter who you love or how you identify, and Out for Biden-Harris will be critical to not just safeguarding, but strengthening the rights and voice of every single American,” she said.

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Melania Trump to host Log Cabin Republicans event

Former first lady is close with the group

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Melania Trump, gay news, Washington Blade
Former First Lady Melania Trump (Washington Blade photo by Michael Key)

Former first lady Melania Trump is back on the campaign trail with plans to host a fundraising event for the conservative LGBT group Log Cabin Republicans on April 20 at Mar-a-Lago, Politico reported on Thursday.

Funds will be used to support the group’s “Road to Victory” program, which will target voters in swing states. LCR has had a close relationship with Mrs. Trump, who was a special guest for its Spirit of Lincoln Gala in 2021, where she received the Spirit of Lincoln Award.

Politico reports that the host committee for this month’s event will include GOP donors Saul Fox, Amanda Schumacher, Bill White, Bryan Eure and Richard Grenell, who is gay and served as ambassador to Germany and acting director of national intelligence during the Trump administration.

“Melania Trump’s work as first lady, from helping children reach their full potential to championing a more inclusive Republican Party, has been historic,” LCR President Charles Moran said in a 2021 press release concerning the Spirit of Lincoln event.

“Her vocal support of Log Cabin Republicans has been a signal to Republicans everywhere that it is possible to simultaneously be conservative and support equality under the law for all Americans,” he said.

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