By Alyssa Rosenberg
May 1, 2009
A State Department couple and the debate over federal benefits for same-sex partners of employees.
Five years ago this March, Michelle Schohn joined the Foreign Service.
Diplomacy wasn't her initial field of choice; she already had a job as an archaeologist. But there was one very significant factor influencing her decision to change careers. Schohn's partner, Mary Glantz, already was a member of the Foreign Service. And when Glantz was posted overseas, things got complicated. The State Department classifies the spouses of gay and lesbian employees as "members of household," according them different benefits than heterosexual couples who are legally married.
Members of household are not eligible to participate in special early-round applications for jobs at embassies, as heterosexual spouses can. They cannot be covered by their partners' health insurance, so they are not guaranteed coverage when they go overseas. They do not have access to diplomatic posts' medical facilities. And if posts have to be evacuated, members of household are not guaranteed evacuation pay or subsidies to cover expenses.
"I was in a career I liked very much," says Schohn, now president of the organization Gays and Lesbians in Foreign Affairs Agencies. But she was faced with the choice of either going overseas unemployed with her partner and without diplomatic protections, or quitting her job and joining the Foreign Service so she and Glantz could get equal treatment. "I didn't like either option," Schohn says.
She may be one of the few people ever to decide to join the federal government because of the way its employment policies distinguish between straight and gay couples. Often, the policies have the opposite effect. At a September 2008 Senate Homeland Security and Governmental Affairs Committee hearing, Frank A. Hartigan, a deputy regional director for the Federal Deposit Insurance Corporation, said if he were starting out in the job market again, he would look outside government for an employer that would allow him to add his partner to his health insurance. Soon, though, Schohn, Hartigan and thousands of other federal employees might not have to make such a choice.
A combination of events-including two court orders from California federal judges, the appointment of an Office of Personnel Management director with a long history of working to change policies that discriminate against gay and lesbian employees, and the inauguration of a president who has voiced support for expanding gay rights-have created a climate favorable to enacting domestic partner benefits for federal employees.
Every year since 1997, legislation called the Domestic Partner Benefits and Obligations Act has been introduced in Congress.
It would grant the domestic partners and legally married spouses of gay and lesbian federal employees access to benefits ranging from access to health insurance through the Federal Employees Health Benefits Program to full participation in relocation programs that are currently available only to married couples. The bill also would require same-sex couples to abide by the rules governing married couples, including nepotism regulations.
Despite the bill's long history, it kicked around from committee to committee without any forward momentum until last year, when Sen. Joe Lieberman, I-Conn., who introduced the latest iteration in December 2007, held the first hearing on the legislation.
It was a largely tame event, without much in the way of partisan bickering or attempts to score points on either side of the culture war. The lone Republican attendee, Maine Sen. Susan M. Collins, was there to support the bill, and she even suggested broadening it to include heterosexual couples who are not married but live together in committed relationships.
There was little disagreement among the witnesses, four out of five of whom testified in support of the bill. The lone dissent came from OPM.
Howard C. Weizmann, then the deputy director of the agency in the waning months of the Bush administration, said OPM opposed the legislation on the grounds that it would be extremely difficult to determine the validity of relationships between same-sex couples in the absence of standard documentation, such as a marriage license. The risk that couples would commit fraud to get access to federal benefits is "not farfetched," Weizmann said, pointing to I Now Pronounce You Chuck and Larry, a movie about two New York firefighters who fake a domestic partnership to protect their pension benefits.
His choice of examples sparked outrage from gay and lesbian federal government employees.
"Weizmann hadn't done his homework," says Leonard Hirsch, president of Federal GLOBE, the governmentwide affinity group for gay and lesbian employees. "It was a total embarrassment to the United States. That won't happen again."
Hirsch's prediction that OPM's reaction to the bill is likely to change is probably on the mark, although it's hard to tell officially, because OPM declined requests to comment for this article. What's certainly true is the next time the agency's representatives come before Congress to discuss the legislation, they will be looking at it from a different perspective.
The handover of the White House from Republicans to Democrats accounts for part of the change. In particular, President Obama's choice for OPM director, John Berry, will bring a new set of experiences and convictions to workforce policy.
Berry, who was confirmed by unanimous consent of the Senate in early April, is the first openly gay agency head in the executive branch. His service as assistant secretary for policy, management and budget at the Interior Department during the Clinton administration provides a blueprint for how he might address issues facing gay and lesbian employees. At Interior, Berry instituted a full review of policies affecting gay workers, resulting in:
Berry said at his confirmation hearing that he couldn't comment on specific issues until he was in office, but his expected support for the Domestic Partnership Benefits and Obligations Act could give the legislation momentum when it is reintroduced in this session of Congress. Rep. Tammy Baldwin, D-Wis., was planning to introduce the bill this spring in the House and Lieberman and Collins are set to push it in the Senate.
External circumstances may encourage the legislators to move quickly. In January and February, two federal judges from the U.S. Court of Appeals for the 9th Circuit in California issued separate orders directing the Administrative Office of the United States Courts to process benefits applications for the same-sex partners of two court employees, and to continue to process such applications on a routine basis. OPM has told the office that the Federal Employees Health Benefits Program is not set up to deal with such applications.
One of the judges has retained jurisdiction over his employee's benefits, and said he will issue additional orders to force the processing of benefits forms, setting up a potential clash between the executive and the judiciary branches.
The quickest way to avert that clash, Hirsch says, would be to pass the Domestic Partnership Benefits and Obligations Act. Then OPM could discuss adding domestic partners with FEHBP providers when it makes its annual round of changes to the program during discussions that take place in the spring and summer.
"It's just simply going through the law and writing the regulations," Hirsch says. "That is normal procedure. It would take six months or so, but hopefully it would immediately impact internally to agencies their understanding of their obligations to [lesbian, gay, bisexual and transgendered] employees."
But agencies and employee groups aren't simply waiting for Congress and the White House to act. Last year, the National Treasury Employees Union and FDIC reached an agreement to create a domestic partnership benefits program at the agency. FDIC is one of only a few agencies where federal unions negotiate pay and benefits issues, rather than simply bargain over working conditions. That created an opportunity for NTEU to push for a program that will allow gay and lesbian FDIC employees to enroll their partners in health, dental, vision and life insurance programs, and to include domestic partners and their children fully in relocation benefits programs.
NTEU president Colleen Kelley credits FDIC chairwoman Sheila Bair, a Republican appointee, with supporting the program, which the labor leader says provides a model for the rest of federal government.
"That's what agencies should follow," she says. "We're in ongoing discussions with the Securities and Exchange Commission. We're pursuing it in every avenue we have."
Other agencies are going through processes similar to the one Berry conducted at Interior in the 1990s. At the State Department, Secretary Hillary Rodham Clinton met with Gays and Lesbians in Foreign Affairs Agencies shortly after she took office and promised a review of the policies that affect them and their partners. In February, gay newsmagazine The Advocate reported that Clinton told town hall participants that the review was "on a fast timeline," suggesting that she might change State policy even before Congress acts.
Hirsch says Attorney General Eric Holder is conducting a similar review at the Justice Department. Other agencies could follow suit, indicating they would be ready to implement new benefits quickly if the domestic partnership legislation passes Congress.
Extending federal benefits to the partners of gay and lesbian employees would make life easier for them. But would such a policy change have broader effects, such as making the government a more attractive place to work, both to potential applicants and current employees?
At Lieberman's hearing last fall, Weizmann said that in the private sector, less than 1 percent of employees at companies that offer domestic partnership benefits actually sign up for them. With such low participation rates, he said, it was a far leap to suggest that implementing such benefits would have any impact on recruitment or retention.
A 2008 report by the Williams Institute at the University of California Los Angeles School of Law predicted that 14,436 additional same-sex partners and children of federal employees would sign up for health benefits if the Domestic Partnership Benefits and Obligations Act passed, increasing benefits spending by $60.4 million annually. The Congressional Budget Office put the price tag at $670 million over 10 years.
But Yvette C. Burton, business development executive at IBM, testified at Lieberman's hearing that domestic partnership benefits weren't simply a way to recruit and retain gay and lesbian employees.
"Like IBM, many companies report that implementation of domestic partnership benefits help to attract and retain crucial talent segments of non- LGBT employees," she said. "These particular candidates have reported that the existence of domestic partnership benefit policies like that at IBM demonstrate that the company truly values and respects all employees, that they protect all employees. . . . This trend is especially prevalent among younger candidates of the workforce, a segment crucial to the future demographics of any sector."
In the short term, the Domestic Partnership Benefits and Obligations Act would have a big effect on federal employees like Michelle Schohn and Mary Glantz, who continually reassess their decision to stay in government.
"We make decisions on a tour-by-tour basis if we're going to stay in the department," Schohn says. "And we will stay in the department if the department allows us to stay together."
By Alyssa Rosenberg
May 1, 2009