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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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1 Comment

1 Comment

  1. Jasun Mark

    September 19, 2013 at 6:11 am

    Dear Mormons,

    Suck it.

    Love, The Gays.

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Politics

Rachel Levine: Efforts to deny health care to trans youth are ‘politics’

Former Pa. health secretary opened Victory Fund conference

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Assistant Health Secretary Rachel Levine speaks at the Victory Fund's 2021 International LGBTQ Leaders Conference in D.C. on Dec. 2, 2021. (Washington Blade photo by Michael Key)

Assistant Health Secretary Rachel Levine on Thursday criticized efforts to prevent transgender youth from accessing health care.

“Unfortunately, some have fought to prevent transgender youth from accessing the health care that they need,” she said in a speech she delivered at the opening of the Victory Fund’s 2021 International LGBTQ Leaders Conference that took place in-person at the JW Marriott in downtown D.C. “This is politics and this politics has no place in health care and public health and they defy the established standards of care written by medical experts.”

Levine was Pennsylvania’s Health Secretary until President Biden nominated her to become assistant secretary of health.

She became the first openly trans person confirmed by the U.S. Senate in March. Levine in October became a four-star admiral in the U.S. Public Health Service.

The conference will take place in-person and virtually through Sunday.

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VIDEO: Biden addresses advocates on World AIDS Day

President says end to transmission ‘within striking distance’

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President Biden addressed advocates on World AIDS Day.

President Biden, in remarks delivered Wednesday at the White House in recognition of World AIDS Day, said to advocates in the fight against HIV/AIDS the end to HIV transmission was near.

“It’s because of you and it’s not hyperbole to suggest that we are within striking distance of eliminating HIV transmission, within striking distance,” Biden told attendees in the East Room.

Joining Biden in the East Room were Secretary of Health & Human Services Xavier Becerra and Gabriel Maldonado, an HIV/AIDS Advocate and founder of TruEvolution, a Riverside, Calif.-based LGBTQ group.

Biden also during his remarks touted having made the appointment of Harold Phillips to lead the White House Office of National AIDS Policy — a position that had gone vacant throughout the entirety of the Trump administration.

Notably, Biden talked about the Ending the HIV Epidemic plan, an initiate health officials started in the Trump administration, by saying was to beat HIV domestically by 2030. That was initial target date when the initiative, but Biden had campaigned on defeating by HIV by 2025 to the skepticism off observers.

Watch Biden full remarks below:

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Biden recognizes LGBTQ survivors in World AIDS Day statement

In contrast, Trump consistently omitted sexual minorities

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President Biden recognized LGBTQ people as among the survivors of the HIV/AIDS epidemic on Tuesday in a statement recognizing World AIDS Day, marking a departure from consistent omissions of the LGBTQ community under the Trump administration.

“Ending the HIV epidemic is within our reach, and we are committed to finishing this work,” Biden said. “On World AIDS Day, we rededicate ourselves to building on the progress of the last 4 decades; upholding and advancing human rights; supporting research, science, and data-driven solutions; expanding access to housing, education, and economic empowerment; and fighting stigma and discrimination. No one living with HIV should suffer the undeserved guilt and prejudice that too many continue to experience.”

Biden, as the world recognizes World AIDS Day on Dec. 1, enumerates LGBTQ people as survivors in a paragraph acknowledging the coronavirus pandemic has presented new obstacles in efforts to beat HIV/AIDS.

“The COVID-19 pandemic has added to the challenges our heroic health care and frontline workers face, yet they continue to deliver essential HIV prevention services and provide vital care and treatment to people living with HIV,” Biden said. “The pandemic has also interrupted HIV research and highlighted the work that still remains to achieve equitable access to HIV prevention, care, and treatment in every community — particularly for communities of color, adolescent girls and young women, and the LGBTQI+ community.”

The inclusion of LGBTQ people in a statement recognizing World AIDS Day stands in contrast to statements from President Trump, who consistently declined to mention the LGBTQ community in each of his statements. The consistent omissions took place even though top health officials under the Trump administration started the Ending the HIV Epidemic initiative, which seeks to beat HIV/AIDS by 2030.

Last year, White House Press Secretary Kayleigh McEnany, asked by the Washington Blade why the LGBTQ community was missing from the 2020 statement, responded with a false statement Trump was the first to observe World AIDS Day by adorning the White House with a large red AIDS ribbon. In fact, the practice began under President George W. Bush and had continued through Obama and Trump administrations.

The inclusion of LGBTQ people in Biden’s World AIDS Day statement is consistent with former President Obama mentioning LGBTQ people as among the survivors of HIV/AIDS in his final World AIDS Day statement. In 2016, Obama acknowledged “gay and bisexual men, transgender people, youth, black and Latino Americans, people living in the Southern United States, and people who inject drugs are at a disproportionate risk” of the disease.

Biden in his World AIDS Day statement says his administration “remains steadfast in our efforts to end the HIV epidemic,” ticking off policies his administration has pursued, including a budget request of $670 million to fight HIV/AIDS domestically and support for global initiatives to fight HIV/AIDS, which he said has save more than 21 million lives.

“This remarkable progress over the past 18 years has been made possible through strong, bipartisan United States leadership and American generosity,” Biden said.

Read Biden’s full statement below:

WORLD AIDS DAY, 2021
 
– – – – – – –
 
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
 
A PROCLAMATION
For decades, World AIDS Day has been recognized as an opportunity for people around the world to stand together in the fight against HIV.  This year on World AIDS Day, we are focused on addressing health inequities and inequalities and ensuring that the voices of people with HIV are at the center of our work to end the HIV epidemic globally.

While we have made remarkable progress in the 40 years since the first-known reported case of AIDS, this disease remains a serious public health challenge — and we join the international community to honor and remember the more than 36 million people, including 700,000 Americans, who have tragically died from AIDS-related illness since the start of the epidemic.  We also renew our commitment to stand with the nearly 38 million people living with HIV around the world as we pursue our shared goal of ending the HIV epidemic.

The COVID-19 pandemic has added to the challenges our heroic health care and frontline workers face, yet they continue to deliver essential HIV prevention services and provide vital care and treatment to people living with HIV.  The pandemic has also interrupted HIV research and highlighted the work that still remains to achieve equitable access to HIV prevention, care, and treatment in every community — particularly for communities of color, adolescent girls and young women, and the LGBTQI+ community.

My Administration remains steadfast in our efforts to end the HIV epidemic, confront systems and policies that perpetuate entrenched health inequities, and build a healthier world for all people. Earlier this year, I reinstated the White House Office of National AIDS Policy to coordinate our efforts to reduce the number of HIV infections across our Nation.  This week, my Administration is releasing an updated National HIV/AIDS Strategy to decrease health inequities in new diagnoses and improve access to comprehensive, evidence-based HIV-prevention tools. This updated strategy will make equity a cornerstone of our response and bring a whole-of-government approach to fighting HIV.

My budget request includes $670 million to support the Department of Health and Human Services’ Ending the HIV Epidemic in the U.S. Initiative — to reduce HIV diagnoses and AIDS-related deaths.  My Administration has also strengthened the Presidential Advisory Council on HIV/AIDS by adding members from diverse backgrounds who bring the knowledge and expertise needed to further our Nation’s HIV response. 

My Administration is committed to helping the world end the AIDS epidemic as a public health threat by 2030.  Through the United States President’s Emergency Plan for AIDS Relief (PEPFAR), we have saved more than 21 million lives, prevented millions of HIV infections, and supported at least 20 countries around the world to reach epidemic control of HIV or achieve their ambitious HIV treatment targets.  This remarkable progress over the past 18 years has been made possible through strong, bipartisan United States leadership and American generosity.  Now, together with partner governments and communities, my Administration is setting a bold vision for achieving sustained epidemic control of HIV by supporting equitable health services and solutions, contributing to improved health for all in PEPFAR-supported countries, and working with the Global Fund to Fight AIDS, Tuberculosis and Malaria; UNAIDS; and other regional and local partners toward the goal of ending the HIV epidemic everywhere.

Ending the HIV epidemic is within our reach, and we are committed to finishing this work.  On World AIDS Day, we rededicate ourselves to building on the progress of the last 4 decades; upholding and advancing human rights; supporting research, science, and data-driven solutions; expanding access to housing, education, and economic empowerment; and fighting stigma and discrimination.  No one living with HIV should suffer the undeserved guilt and prejudice that too many continue to experience.  We must innovate and explore new ways to help address HIV/AIDS in communities here at home and around the world.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 1, 2021, as World AIDS Day.  I urge the Governors of the United States and its Territories, and the American people to join the HIV community in activities to remember those who have lost their lives to AIDS and to provide support, dignity, and compassion to those living with HIV.

IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of November, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-sixth.
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