Thursday, June 20, 2013

PFLAG Policy Matters

Dear PFLAGers:

We hope you’ll join us in welcoming back Policy Matters! Every first and third Thursday of the month, PFLAG National will cover newsworthy local, state, and federal policy and legislative items to keep PFLAGers informed.

Got a policy or legislative question for Policy Matters? Drop us a line at with “Dear Policy Matters” in the subject line.  

So, please enjoy, and we welcome your feedback and inquiries any time!

Policy Matters: June 20, 2013

As of this morning, no marriage equality rulings have yet come in from the Supreme Court. The next possible decision date is Monday, June 24. For a summary of the cases and possible outcomes, scroll down to DEAR POLICY MATTERS.

Front Page Headlines

President Obama Commends Ohio PFLAG Mom in White House Pride Reception Remarks: PFLAGer Susan Mason’s Letter Calls for Workplace Equality to Include Her Daughter
In a letter to President Obama, which she never expected to reach him while in office, Urbana, IL PFLAGer Susan Mason asked for workplace equality legislation to include her daughter M.  She included a postscript, asking whichever staffer would deliver the note to please request that the President read it after leaving office when he would have more time to review past constituent correspondence.  However, not only did Susan’s letter reach the President immediately, but it motivated him to invite Susan and her daughter to the White House LGBT Pride Reception...and to share the letter during his introductory remarks.  The letter and its Presidential recognition is particularly important as the inclusive Employment Non-Discrimination Act (ENDA) is likely to be considered in the Senate at the Committee level this July and hopefully moved to the Senate Floor for a vote this year. Read what PFLAGers should know about ENDA here.

Delaware Becomes 17th State to Protect Transgender Rights  
On June 18, the Delaware House voted on S. 97, a bill to add gender identity or expression to the state’s anti-discrimination and hate crimes law. The Senate passed it yesterday, June 19, and Governor Jack Markel--a strong leader on gender identity and gender expression inclusion in non-discrimination protections--signed the bill into law that same day.  This was a great win, and one that PFLAGers can include as an update to their anti-discrimination advocacy talking points: Seventeen states and the District of Columbia include gender identity or expression in their nondiscrimination laws. Fourteen of those states and the District of Columbia have enacted trans-inclusive hate crimes statutes.

President Obama Nominates Three Openly Gay Ambassadors: The President has once again demonstrated his strong support for LGBT equality by nominating three openly gay Ambassadors. The nominees, who are still pending Senate confirmation, are: Daniel Baer, the openly-gay Deputy Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor, as the next ambassador of the Vienna-based, 57-country Organization for Security and Cooperation in Europe (OSCE); James Costos, an accomplished businessman and current executive at HBO, as the United States Ambassador to Spain; and Rufus Gifford, a former finance official for the Presidential Inaugural Committee, Obama for America, and the Democratic National Committee, as the United States Ambassador to Denmark.  Previously appointed and confirmed openly gay Ambassadors are David Huebner, ambassador to New Zealand and Samoa since 2009; Michael Guest, ambassador to Romania from 2001-2004 and James Hormel, ambassador to Luxembourg from 1999-2001.

Virginia's First Openly Gay Judge Officially Sworn In
Richmond Circuit Court Judge Tracy Thorne-Begland’s investiture took place inside the Richmond City Council’s chambers, making him Virginia’s first openly gay judge. The former prosecutor’s 8-year-old twins Chance and Logan straightened their father’s black robe as his partner, Michael Thorne-Begland, looked on.  More than 200 people attended the ceremony.

New Williams Institute Report on Federal Contractors Strengthens Rationale for Presidential Executive Order for Employment Non-Discrimination by Contractors Receiving Federal Government Funds -  Shows That 90% of the Top 50 Federal Contractors Prohibit Discrimination Based on Sexual Orientation, 67% Prohibit Discrimination Based on Gender Identity: The report notes that the top 50 federal contractors represent more than $249 billion (46.9%) of all contracting dollars awarded by the U.S. federal government,  Of the top 50 of Fortune 500 companies, 49 prohibit discrimination based on sexual orientation (98%) and 88% prohibit discrimination based on gender identity.  Published in May, the report’s figures are effective as of January 2013. The timely report’s release coincides with the sustained and stepped-up requests from LGBT people and their allies for President Obama to honor a campaign promise that preceded his first term stating his support of a mandate that the U.S. government contract only with companies that have policies prohibiting workplace discrimination against LGBT workers.  PFLAG National is on the record as a supporter of the President signing an Executive Order for Federal Contractors.  

Immigration Reform Bill Debate Expected to Continue through June
Despite the strongly bipartisan Senate vote of 84-15 to debate S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, PFLAGers should stay braced to continue at least through June urging legislators to support and vote for an accessible pathway to citizenship, keeping families together, removing any filing deadline to seek asylum and fighting against harmful Amendments by comprehensive immigration reform opponents.

Policy News

Social Security Administration (SSA ) Updates Policy for Gender Marker Change
The new policy permits people to update their gender marker with a physician’s certification that confirms appropriate clinical treatment  for gender transition [this is the language the physician’s letter should use with no greater detail requested] or if they can show that they have updated their federally issued passport or state-issued birth certificate. Motor vehicle licenses are NOT considered among acceptable identifying documents at this time.  The new policy includes staff guidance on interviewing and serving transgender people that addresses direct protections such as proper pronoun usage and providing confidentiality.  This aligns SSA with several other federal agencies providing respect to transgender people, including the Department of Homeland Security’s immigration documentation, the Office of Personnel Management’s federal employee personnel records, the Housing and Urban Development’s guidelines, and the Veterans Health Administration’s veterans' records. The first federal agency to update its policy regarding gender markers was the Department of State under then-Sec. Hillary Clinton in 2010, while a remaining outlier on federal records system policy updating is the Department of Defense. According to the National Transgender Discrimination Survey, approximately half of transgender people report being unable to make current the gender on their records due to the restrictive policy formerly in place until today. The study surveyed more than 6,400 people in the U.S. and was conducted by the National Gay and Lesbian Task Force and The National Center for Transgender Equality (NCTE).  Click here to read a helpful guide from NCTE.

Advocates in Illinois Still Have Hope for Marriage Equality Bill This Summer
Illinois House Speaker Michael Madigan (D-Chicago) granted a deadline extension until August of Illinois's marriage equality bill SB0010. Proponents hold out hope for Gov. Pat Quinn to call lawmakers back to Springfield in the summer for a special session to address pension reform, which also was left unresolved before adjourning.  At that time, he could include Senate Bill 10 in a special session proclamation. The bill could stay alive if Speaker Madigan calls a House special session at the same time to take up the legislation. Marriage equality advocates suffered a setback in May when the legislature adjourned without voting on the bill.

LGBT Youth Included in Senate Committee-Passed Bill With Language of SSIA and SNDA
Sen. Tom Harkin’s 1,150-page Strengthening America's Schools Act, passed in the Senate’s Health, Education, Labor and Pension’s (HELP) Committee, includes LGBT students by copying the full language of the stand-alone Student Non-Discrimination Act (SNDA) and the provisions included in the Safe Schools Improvement Act (SSIA). The bill would reauthorize The Elementary and Secondary Education Act, more commonly known as “No Child Left Behind.”  Modeled after Title IX of the Education Amendments, the SNDA provision in the bill establishes LGBT students as a protected class and prohibits schools from discrimination, including bullying, against any student based on actual or perceived sexual orientation or gender identity (and gender expression through the definition of gender identity). The bill also contains provisions similar to SSIA that promote a positive school climate and require reporting on incidents of bullying, including on the basis of sexual orientation or gender identity (or gender expression by definition).

ENDA Gains Speed as Sen. Maj. Leader Harry Reid (D-NV) Becomes 50th Senator to  Co-Sponsor in the 113th Congress
The inclusive Employment Non-Discrimination Act (ENDA) received a strong boost last week when Senate Majority Leader Harry Reid (D-NV) signed on as the bill’s 50th Senate cosponsor.  Bucking his usual pattern of declining to sponsor bills due to his Senate Leadership role, he signed on while saying to The Huffington Post, “It’s time to make fairness the law of the land.  That is why I am cosponsoring this legislation, and I will do everything I can to ensure that it passes the Senate.”  He is on the record as confident that the inclusive bill will move soon in The Senate.  The inclusive bipartisan ENDA is sponsored in the House by Reps. Jared Polis (D-CO) and Ileana Ros-Lehtinen (R-FL) and in the Senate by Sens. Jeff Merkley (D-OR) and Mark Kirk (R-IL).  [Note: While Sen. Reid is the 50th Senator to sign on to Co-Sponsor ENDA in this Congress, the tally for the bill’s cosponsors when he signed was 49 due to the death earlier in June of ENDA co-sponsor Sen. Frank Lautenberg.  ENDA reached 50 living cosponsors in the Senate this week when Sen. Tom Carper, the senior Senator from Delaware, signed on.]

Dear Policy Matters

Dear Policy Matters:

Just about everyone who is involved or invested in my LGBT loved ones’ lives is talking about The Supreme Court, waiting eagerly and anxiously for what the SCOTUS decisions will be regarding marriage. What are the possible outcomes, and how will they affect my LGBT loved ones?

Anxious Ally

Dear AA:

For PFLAGers, the most important point is that love is love, and marriage is marriage.  The Supreme Court’s decision choices will not avert that assertion.  Let’s look at the cases, each to be ruled separately by The Supreme Court, and possible outcomes for each:

U.S. v. Windsor: Often referred to as the DOMA Case

Request: Edie Windsor challenges Section 3 of The Defense of Marriage Act, DOMA (that denies federal equal protection under the law of all married couples), as unconstitutional.  She asks the federal government to treat all legally married couples equally in terms of more than 1,135 federally legally granted rights and benefits, including tax, Social Security, inheritance, immigration, veterans and military spouse status.

Case: Edith (Edie) Windsor, 83, is a widow who upon the death of her 40-year partner, her legally recognized wife in their home state of New York, in 2009 was called to pay $350,000 in federal estate taxes to claim the house they shared and in which they lived, their home, her home. She was precluded from inheriting her own family home from her spouse as opposite-sex spouses do without burden, only because she was a same-sex spouse and then a same-sex widow.  Edie’s federal suit challenged Section 3 of DOMA, which her suit claims violates the equal protection clause of the U.S. Constitution.  Section 3 of DOMA denies the federal government the right to reccognize any marriage that is not between one man and one woman.  Her claim is that Section 3 of DOMA is unconstitutional because it fails to provide equal protection under the law for same-sex couples that is granted to every other legally married couple if they are opposite-sex couples.  Edie was present on the Supreme Court steps when her case was heard.

Hollingsworth v Perry: Often referred to as the Prop 8 Case

Request: Kristen Perry asks the Supreme Court to strike down as unconstitutional Proposition 8, which by popular vote amended the California state constitution to ban same-sex marriage in California, and return the right to same-sex marriage in California.

Case: Selected to be the face to challenge California's Prop 8, Kristen Perry was denied a marriage license because her to-be spouse, her partner for more than 13 years, is a woman. Same-sex marriages had been permitted in California until a popular vote to amend the California state constitution passed in the 2008 election which banned same-sex marriage.  Her lawsuit seeks to end the ban that the suit says violates the equal protection clause of the U.S. Constitution, as described in the Windsor case noted above.  The District Court’s broad found that Prop 8 is unconstitutional and its finding would have affected same-sex marriage bans in other states.  The 9th Circuit Court of Appeals did agree that Prop 8 is unconstitutional, but its findings applied narrower reasoning based on two facts: 1. California revoked a previously permitted right for same-sex couples to marry and 2. that the state already granted the rights of marriage to same-sex couple in the name of domestic partnerships, and denying the term “marriage” for which California could offer no legitimate government interest.

SCOTUS findings’ potential scenarios and outcomes:

Scenario 1: Win Windsor; Win a broad decision on Perry (on the case’s merits and standing/right for opponents to bring suit)

  • Section 3 of DOMA and Prop 8 are stricken.
  • All existing state marriage bans are overturned, including that in California.

Scenario 2: Win Windsor; Win a narrower decision on Perry

  • Section 3 of DOMA and Prop 8 are stricken.
  • Same-sex marriage is legal again in California.
  • Same-sex marriage must be granted by states with legal civil unions and those with legal domestic partnerships.
  • Existing same-sex marriage bans in states remain.

Scenario 3:  Lose Windsor; Win Perry

  • Section 3 of DOMA stands and is upheld; Prop 8 is stricken.
  • Same-sex marriage returns to California.
  • The 1,135 federal rights and benefits granted to opposite-sex married couples remain withheld from same-sex married couples.

Scenario 4: Win Windsor; Lose Perry

  • Section 3 of DOMA is stricken; Prop 8 is upheld.
  • Legally married same-sex couples (in 12 states and D.C.) receive federal rights and benefits of marriage.
  • Prop 8 and other state same-sex marriage bans stay in place, and California would have to return to voters to overturn Prop 8.

Scenario 5: Lose Windsor; Lose Perry

  • Section 3 of DOMA stands and is upheld; Prop 8 is upheld.
  • Same-sex married couples in 12 states and D.C. are denied federal rights and benefits granted to opposite-sex married couples.
  • Prop 8 and other state same-sex marriage bans stay in place, and California would have to return to voters to overturn Prop 8.
  • PFLAGers re-double their efforts to secure marriage equality and fairness for all loving couples who wish to marry across the country.

Scenario 6: The Supreme Court could decide that the Perry case should not be reviewed and shouldn’t have been accepted to be reviewed. Considered highly unlikely, but a possible (not probable) outcome.

  • This is formally named “dismissed as improvidently granted,” which you might hear as “DIG.”  
  • If, even in the unlikely case, the Supreme Court decides this, the the federal appeals ruling would stand, which would strike down Prop 8 and return same-sex marriage to California.

There is a lot of potentially confusing information to comb through. Fortunately, the LGBT and ally community is replete with experts who dedicate their knowledge in part to helping a broad base of people who want to understand what current events can mean as well as what they are.  

Check out the following helpful links and images:

  • Third Way prepared this chart of possible outcomes, coupled with the video of a discussion they held on June 18 on both cases, featuring U.S. Senator Kirsten Gillibrand from New York and David Boies, co-counsel in Hollingsworth v Perry, more commonly known as the “Prop 8 case.” 
  • The American Foundation for Equal Rights prepared a handy visual infographic to show the potential outcomes of the Supreme Court’s ruling regarding Prop 8.
  • ACLU represents Edie Windsor in the DOMA case. Read more here.
  • GLAD, which led the way for same-sex marriage in Massachusetts in 2004 and brought a separate case to be considered by SCOTUS, weighs in on the two pending Supreme Court cases through Mary Bonauto, who has been noted as “Our Thurgood Marshall,” here.
  • NCLR and Lambda Legal will join ACLU and GLAD on Decision Day on Twitter to answer questions at the hashtag #LGBTatSCOTUS, as they did on June 18, and you can follow to read as decisions are announced.

And if you want to remember why your voice is so important, reread the PFLAG Amicus brief here.

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