Thursday, August 15, 2013

Policy Matters: August 15, 2013

In the News

Court Allows Landmark Case Against Anti-LGBT Leader to Proceed, Historic Ruling Affirms LGBTI Rights as Internationally Recognized and Denies Scott Lively’s Motion to Dismiss the Case

On Aug. 14, in a first-of-its kind case brought by a Ugandan LGBTI advocacy organization against a broadly recognized U.S. anti-LGBT activist, a federal judge ruled that persecution on the basis of sexual orientation and gender identity is a crime against humanity and that the fundamental human rights of LGBTI people are protected under international law. The ruling means that the case brought by the Center for Constitutional Rights (CCR) on behalf of Sexual Minorities of Uganda (SMUG), a Uganda-based coalition of LGBTI rights and advocacy groups, can move forward over defendant Scott Lively’s request to dismiss the lawsuit. The next step in the case is a scheduling conference to be followed by discovery and depositions, as the court denied Lively’s motion to dismiss the suit.

“Widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms,” said Judge Michael Ponsor. “The history and current existence of discrimination against LGBTI people is precisely what qualifies them as a distinct targeted group eligible for protection under international law. The fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability.”

The lawsuit alleges that Lively’s actions over the past decade, in collaboration with key Ugandan government officials and religious leaders, are responsible for depriving LGBTI Ugandans of their fundamental human rights based solely on their identity, which is the definition of persecution under international law and is deemed a crime against humanity. This effort bore fruit most notably in the introduction of the notorious Anti-Homosexuality Bill (aka the Kill the Gays bill), which Lively is credited with helping to create. Lively has also been active in countries like Russia where a new law criminalizing gay rights advocacy was recently passed. In 2007, Lively toured 50 cities in Russia recommending some of the measures that are now law.

“Today’s ruling is a significant victory for human rights everywhere but most especially for LGBTI Ugandans who are seeking accountability from those orchestrating our persecution,” said Frank Mugisha, the director of SMUG.  

U.S. law allows foreign citizens to sue for violations of international law in U.S. federal courts under the Alien Tort Statute (ATS). The case, Sexual Minorities Uganda v. Lively, was originally filed in federal court in Springfield, MA, in March 2012. See the Aug. 14 ruling.

U.S. Olympic Runner Earns Medal in Moscow, Speaks about Anti-Gay Russian Law, Dedicates Silver Medal to His Gay and Lesbian Friends Back Home

American two-time Olympic runner Nick Symmonds on Tuesday made a statement in Moscow about the Russian law that bans gay propaganda to minors as he dedicated to his gay and lesbian friends the silver medal he won during the International Association of Athletics Federation’s (IAAF) World Championship in Moscow.

“As much as I can speak out about it, I believe that all humans deserve equality as however God made them,” Symmonds told the Russian news agency RIA Novosti after he came in second in the men’s 800 meter final during the IAAF World Championship at Moscow’s Luzhniki Stadium. “Whether you’re gay, straight, black, white, we all deserve the same rights. If there’s anything I can do to champion the cause and further it, I will, shy of getting arrested.” Read more about this comment, here and his comments on Runner’s World’s website where he criticized the gay propaganda law.The day before the athlete’s visit to Moscow, the Russian Interior Ministry said it would enforce the gay propaganda law during the 2014 Winter Olympics that will take place in Sochi, Russia, in February 2014.

RIA Novosti reported that Symmonds is the first athlete to publicly criticize the gay propaganda law that President Vladimir Putin signed in June while on Russian soil.  “I respect Russians’ ability to govern their people,” Symmonds told RIA Novosti. “I disagree with their laws. I do have respect for this nation. I disagree with their rules.”

Four Ambassadors and DOJ Official, All Openly Gay, Pass Senate Vote Unopposed

Four ambassadors and a senior Justice Department official were among Presidential appointment nominees approved by the Senate on an August 1 voice vote.  The Senate confirmed John Berry to serve as the ambassador to Australia — the first out gay ambassador to a G-20 nation — on a voice vote Thursday, along with three other out gay ambassadorial nominees: Rufus Gifford as ambassador to Denmark, James Costos as ambassador to Spain and Daniel Baer to the Organization for Security and Co-operation in Europe. Also confirmed on a voice vote was Stuart Delery, a senior Justice Department official and argued for the Obama administration in court that the Defense of Marriage Act should be struck down as unconstitutional. Read more about these appointments.

Florida’s Alachua County Commission Passes LGBT Protections

On Aug. 13, Florida’s Alachua County Commission, with its county seat as Gainesville and a population of nearly 250,000, voted 4-0-1 (four voted yes, zero no, one not voting) to add employment, housing and public accommodation protections for lesbian, gay, bisexual and transgender (LGBT) residents. The county joins 24 other Florida cities and counties with anti-discrimination protections, bringing the total of Floridians who reside where protections exist to 6.4 million. Other Florida municipalities that offer these protections include Leon County, Volusia County, Orange County, Palm Beach County, Broward County, Gulfport, Dunedin, North Miami, Miami Beach, Venice and St. Augustine. Since 2008, the City of Gainesville has had comprehensive protections for LGBT residents, but those protections are only within the city’s limits. The vote by the majority of the Alachua County Commission provides countywide protections for people who live or work outside of Gainesville’s city limits.

Longtime HIV/AIDS Activist Sean Sasser, 44, Died on August 7

Sean Strasser, 44, long-time partner of Michael Kaplan, President and CEO of AIDS United, died on Aug. 7 of the rare lung cancer mesothelioma, diagnosed at Stage 4 in July 2013 after an abnormal blood test the month before. He was diagnosed HIV positive 25 years ago, making him a long-time survivor of the disease.

Strasser, an understated, veteran HIV/AIDS activist was well-known from his unsought media visibility as the partner of Pedro Zamora on MTV's The Real World: San Francisco in 1994. Strasser disclosed his HIV status on the program.  Zamora, who raised HIV/AIDS awareness uniquely through the show, died of AIDS-related progressive multifocal leukoencephalopathy in November 1994. Strasser’s and Zamora’s on-air commitment ceremony occurred three weeks before Zamora died, with Strasser at his bedside.

Strasser’s life traversed Portland, Oregon – where a memorial service was held on August 8 – as well as Atlanta and Washington, DC, where a vigil will be held on Sep. 21.  He was a pastry chef at the restaurant RIS restaurant in Washington, where he worked until becoming too ill five weeks before his death, and he told the Washington Blade newspaper in May,  Read more about Sean here and here.

About Policy and Legislation

U.S.  Department of Labor Expands Family and Medical Leave to Same-Sex Married Couples

The U.S. Labor Department has issued guidance to inform employers, employees, and federal courts about an important change under the Family & Medical Leave Act (FMLA) following the U.S. Supreme Court decision striking down Section 3 of the Defense of Marriage Act (DOMA). Under the the new guidance, the FMLA now protects same-sex married couples. The Family & Medical Leave Act permits eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Before the historic ruling to strike down DOMA, the DOL could not require employers to grant same-sex married couples FMLA leave. This DOL expansion to include same-sex married couples in FMLA permits those couples to enforce their FMLA rights in federal court. 

California Governor Brown Signs Historic Transgender Student Bill into Law

On Aug. 12, California Gov. Jerry Brown signed the nation’s first School Success and Opportunity Act  (AB 1266) into law, ensuring that transgender youth have the opportunity to fully participate and succeed in schools across the state effective Jan. 1, 2014. The law requires that California public schools respect students’ gender identity and ensures that students can have equal access to all school activities, sports teams, programs, and facilities. PFLAGers in California worked diligently urging legislators to support this bill which was backed by a coalition of leading organizations, including National Center for Lesbian Rights, ACLU of California, Gay-Straight Alliance Network, Equality California, Gender Spectrum, Transgender Law Center, statewide teacher and parent organizations including PFLAG chapters across California, and dozens of other organizations.

The new law sets a strong standard and builds on a national movement to end discriminatory practices and ensure transgender youth have the same opportunity to succeed as other students. Massachusetts and Colorado have statewide policies in line with AB 1266, and the Colorado and Maine state human rights commissions have held that state law requires schools to respect students’ gender identity. Additionally, many school districts across the country have adopted inclusive policies. Both San Francisco and Los Angeles already have such laws in place.

California law already prohibited discrimination in education, but transgender students had often been discriminated against and unfairly excluded from school facilities and physical education, athletic teams, and other school activities. Read more about this law.

UNC System Bans Gender-Inclusive Housing and Risks Campus Safety for LGBT Tar Heels, Especially Transgender and Gender Non-Conforming Students

The University of North Carolina on Aug. 9 became the first statewide university system in the country to pass a policy expressly prohibiting Gender-Inclusive housing. The UNC Board of Governors voted to pass a ban that would prohibit implementation of Gender-Inclusive housing that had been passed by UNC Chapel Hill last Spring — and the new policy will ban such housing options at all 17 of its campuses.

The UNC Board of Governors new policy reads:
The constituent institutions shall not assign members of the opposite sex to any institutionally owned and operated dormitory room, dormitory suite, or campus apartment unless the students are siblings, parent and child, or they are legally married. This policy applies to housing assignments beginning with the fall 2013 semester.
At the meeting preceding the vote, UNC students were not allowed on the agenda, nor did the UNC Board of Governors hear any research related to how the ban negatively impacts campus safety. Based on national research conducted by Dr. Sue Rankin of Campus Pride, “trans-spectrum students are already an at-risk population.”  She also wrote, “The Campus Pride 2010 State of Higher Education report was one of the first national studies to examine the climate on college campuses. The study involved more than 5,000 LGBTQ students, staff, and faculty and found that almost a quarter of the LGBTQ respondents and about one third of the trans-identified respondents had experienced harassment or violence on campus because of their sexual or gender identity.”  

Marriage Equality Fight Moves Forward with Virginia Lesbian Couples Filing Suit

The American Civil Liberties Union and Lambda Legal on Aug. 1 filed a federal lawsuit on behalf of two lesbian couples who are challenging Virginia’s same-sex marriage ban (established in 2006) and its refusal to recognize same-sex marriages legally performed in other states. Joanne Harris and Jessica Duff of Staunton, who have been together for more than nine years and are raising a 4-year-old son, tried to apply for a marriage license in Staunton Circuit Court on July 29. Christy Berghoff (an Air Force veteran who works for the U.S. DOJ) and Victoria Kidd of Winchester, who have been together for more than nine years and are raising an 8-month-old daughter, married in D.C. in August 2011. Read more about this story.

Social Security Administration Limits Payments To Same-Sex Married Couples Living In States That Recognize Marriage Equality

The Social Security Administration is limiting payment of claims for same-sex married couples currently to those couples who were married in a state the allows same-sex couples to marry and are “domiciled,” or live, in a state that recognizes same-sex couples’ marriages.
The decision means that claims from same-sex couples married where such couples can legally marry but who live in a state that does not recognize such marriages are having their applications put on hold for the time being.  As of Aug. 10, a new section for “Windsor Same-Sex Marriage Claims” — named after the Supreme Court case of United States v. Windsor, which resulted in a part of the Defense of Marriage Act being struck down — was added to the Social Security Administration’s Program Operations Manual System (POMS), which the agency describes as the primary source of information used by Social Security employees to process claims for Social Security benefits. The claims processing instructions “allow for payment of claims” when the claimant “was married in a state that permits same-sex marriage” and “is domiciled at the time of application, or while the claim is pending a final determination, in a state that recognizes same-sex marriage.” Read more about this development.

Pentagon Revises Policies to Include Same-Sex Married Couples and Dependents

Same-sex spouses of military servicemembers will receive health care, housing and other benefits by Sep. 3, 2013 under a new policy issued by the Pentagon. The Defense Department policy grants up to 10 days of leave to military personnel in same-sex relationships who live outside of states where same-sex marriage is legal  to travel to states where they can marry legally. The memo from Defense Secretary Chuck Hagel to top defense leaders reverses an earlier plan that would have allowed the same-sex partners of military members to sign a declaration form in order to receive limited benefits, such as access to military stores and some health and welfare programs. Read more about this from the Navy Times.

U.S. State Department Sets Equal Treatment Visa Policy For Same-Sex Married Couples and Their Children

In a policy change announced on Aug. 2 by Sec. of State John Kerry, the United States will begin processing visa applications for same-sex married couples effective immediately, as long as the marriage was performed in a jurisdiction that recognizes it as legal. The new State Department policy will also impact the children of the foreign national spouse by considering them "step-children" of the parent who is a U.S. citizen. 

"If you are the spouse of a U.S. citizen, your visa application will be treated equally. If you are the spouse of a non-citizen, your visa application will be treated equally. And if you are in a country that doesn’t recognize your same-sex marriage, then your visa application will still be treated equally at every single one of our 222 visa processing centers around the world," Kerry said during an appearance at the U.S. embassy in London. According to Freedom to Marry, sixteen countries permit same-sex marriage — Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, New Zealand, Uruguay and Britain — while certain regions of the U.S. and Mexico also allow same-sex couples the right to marry. Read more about this new policy and read The State Department's FAQ.

Health Records with LGBT Identity Data Would Improve Care, Reduce Disparities
According to a new peer-reviewed article in the journal LGBT Health, recording the sexual orientation and gender identity (SOGI) of individuals in their health records would greatly facilitate identifying the unique health needs and health disparities of LGBT individuals. These actions would lead to improved quality and outcomes of their health care. The advantages of reporting this information and the growing support for including it in electronic health records (EHRs) are described in an article. In the article “Sexual Orientation and Gender Identity Data Collection in Clinical Settings and in Electronic Health Records: A Key to Ending LGBT Health Disparities (full article) the authors describe overwhelming support for routine collection of SOGI information among LGBT advocacy groups and HIV/AIDS organizations, as well as the support for SOGI data collection in the Healthy People 2020 initiative, and the Affordable Care Act.

U.S. Legislators Urge HHS Sec. Sebelius to Modernize Blood Donation Policy

On Aug. 2, Congressman Mike Quigley (D-IL), U.S. Senators Tammy Baldwin (D-WI) and Elizabeth Warren (D-MA), and Congresswoman Barbara Lee (D-CA) sent a letter to U.S. Department of Health and Human Services Secretary Kathleen Sebelius requesting information on the ongoing efforts by HHS to reevaluate blood donation criteria for men who have sex with men (MSM). MSM are currently deferred from donating blood for life while other high-risk donors are not. The current lifetime ban on MSM donating blood was put in place during the rise of the AIDS epidemic in the 1980s, but is no longer scientifically justified with current blood screening technology. In 2010, the HHS Advisory Committee on Blood & Tissue Safety & Availability (ACBTSA) found the ban to be suboptimal and asked for re-evaluation of this policy. On June 18, 2013, the American Medical Association (AMA) passed a resolution opposing the current lifetime ban as discriminatory and not based on sound science. Instead, the AMA supports new donation deferral policies that are based on an individual’s level of risk. The blood banking community, including the American Red Cross and America’s Blood Centers, has also long-supported a change in policy.

The letter said, “Since the beginning of the HIV/AIDS epidemic more than 30 years ago, the scientific community’s understanding of the virus has changed dramatically. We have seen vast advances in blood screening technology, blood donation policy changes in other countries allowing MSM to donate, and opposition from our nation’s blood banks who have called the current ban ‘medically and scientifically unwarranted.’ Our current policies turn away healthy, willing donors, even when we face serious blood shortages. Further, the existing lifetime ban continues to perpetuate inaccurate stereotypes against gay and bisexual men, and fosters an atmosphere that promotes discrimination and discourages individuals from seeking HIV testing and treatment services.”  Read the letter signed by these four and 82 other bicameral and bipartisan U.S. Senate and House colleagues and read Metro Weekly's coverage.

Bill Wants Benefits for Civil Union Same-Sex Couples, Beyond Those Married

California Rep. Linda Sánchez wants federal protection for same-sex couples to go beyond current recognition for same-sex married couples, introducing legislation on Aug. 2 that would provide equal Social Security benefits for same-sex couples in civil unions or domestic partnerships and for those who are married. The Social Security Equality Act of 2013, introduced with 109 co-sponsors, would require the Social Security Administration to provide spousal, survivor and death benefits to same-sex couples in relationships that have been recognized by the state where they live.

The change would allow Social Security benefits for same-sex couples whose relationships are recognized by the states of Hawaii, Illinois, Nevada, New Jersey and Oregon. California, Delaware and Rhode Island, to the extent people there have civil unions or comprehensive domestic partner benefits still, would appear to be covered as well. The bill would not, however, affect those in states where same-sex couples’ relationships have no formal recognition.

This bill is introduced as the federal government adjusts the bureaucracy to life after the Defense of Marriage Act’s federal ban on recognizing same-sex couples’ marriages, new legislation raises the question of how those still without marriage rights are going to be treated by the federal government. Read more about the bill in BuzzFeed’s story.

Dear Policy Matters:

With Section 3 of DOMA being struck down on June 26, I am getting confused on where same-sex married couples are included in federal benefits and more importantly, where we are not yet.  Can you tell me which federal benefits issues are not yet resolved?

Proud and Puzzled

Dear P&P:

While we will continue to update PFLAGers on changes as they are made, there are a few that are under review, including some that are still being interpreted and others that are being discussed about whether statutory changes (e.g. new legislation) is needed.

1. Social Security (Retirement)

The Social Security Administration is processing  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 to same-sex married couples living in states that recognize their unions.

Missing: Couples that apply for these retirement benefits in non-marriage equality states for the time being will have their requests placed on hold.  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.

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.

Missing: Couples living in states that have not yet permitted same-sex marriage are currently not receiving tax benefits. Post the June 26 SCOTUS ruling on Section 3 of DOMA, the IRS is working with the Department of Treasury and Department of Justice to provide guidance.

3. Veterans Benefits

Defense Secretary Chuck Hagel announced on June 26, the day the U.S. Supreme Court struck down Section 3 of DOMA, that the Pentagon would comply the law to implement benefits for servicemembers with same-sex spouses.  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.

Missing: The question of whether veterans will be included as part of the package remains to be seen because 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.  The Department of Defense is working with the Department of Justice as it considers guidance.

4. Family & Medical Leave Act

This issue of Policy Matters share’s the announced inclusion of same-sex married couples being recognized equally as all other married couples regarding FMLA.

Missing: Couples who are in Civil Unions or Domestic Partnerships are not included.
You can read more detail about each of these federal benefits issues.

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