What Does the Employment Non Discrimination Act (ENDA) of 2013 Actually Cover

On July 10, 2013, just two weeks after DOMA was ruled unconstitutional, members of the Senate Committee ruled 15-7  in favor of  Senate Bill 815 called the Employment Non Discrimination Act (ENDA) of 2013. This is the eighth revision since being introduced in 1994. The purpose of ENDA is to ban workplace discrimination based on sexual orientation and gender identity.

This update is a significant improvement upon previous revisions. In the past, it has been unable to fulfill its intended purpose due to significant language that has been excluded.  Gender identity was not proposed in the wording of the bill until 2007 when introduced in the Senate and then removed once making its way to the House. On two occasions in 2007 and 2009 have attempted to include gender identity in the wording only to have failed and died in committee.

So what does all this talk about sexual identity and gender really mean?

Sexual identity and gender are completely different concepts:

  • Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted.
  • Gender refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex.WorkplaceDiscrimination

Across the United States, LGBT  individuals are being fired from their place of employment due to discrimination. According to a June 13 poll by the Pew Research Center, 21 percent of LGBT adults say they have been treated unfairly by an employer in hiring, pay, or promotions.

In addition to workplace discrimination, LGBT employees face wage disparities, and studies show that the transgender population is disproportionately affected.

Currently, 29 states provide no state law to protect lesbian, gay, and bisexual employees from being fired and 33 states lack state laws protecting transgender individuals.

North Carolina is an employment-at-will state which means that an employee can be fired for no reason except in cases of discrimination. Federal protection legislation such as ENDA is important because statutes will prohibit employers from discharging employees based on impermissible considerations such as sexual orientation or gender.

Senator Richard Burr(R-NC) was quoted stating:

“Like most Americans, I strongly oppose and condemn unjust discrimination, it is my hope that our society can be tolerant of different people and ideas. That said, whenever we consider new legislation we must always consider the interplay of new laws with existing rights. I am concerned that the ENDA bill would go beyond our existing laws protecting individuals’ employment rights and would impose new burdens and legal uncertainties regarding the exercise of religious liberties. Therefore, I plan to oppose the bill.”

Despite Richard Burr’s comment, a poll released on June 17, 2013, by Public Policy Polling (PPP) found that a strong majority of North Carolinians 71% think employers should not be able to discriminate against employees based on their sexual orientation compared to just 20 percent who think they should be able to.

ENDA is now one next step forward to being approved by the senate where it will hopefully be approved. It must be passed by both the senate and the house before President Obama can sign it into law.  Click here to track the progression of the bill.

A How To on Health Care for LGBTQ

The United State’s system of health care continues its progression in providing all-inclusive services since the repeal of the Defense of Marriage Act. Monday, July 1st, the Centers for Medicare and Medicaid Services (CMS) issued an official policy announcement declaring same-sex partners be given equal visitation rights at long-term care facilities regardless of their marital status. This new guidance policy applies to all long-term care health facilities receiving Medicare and Medicaid funding to include nursing homes and hospice facilities.

How does this affect agencies and staff?

Now that medical facilities are encouraged to be more inclusive of LGBTQ individuals and families, agencies are encouraged to evaluate existing programs and services as well as staff support.

A useful tool that can be used by agencies is the Health Equality Index (HEI) developed by the Human Rights Campaign and the Gay and Lesbian Medical Association (GALMA). The HEI measures the effectiveness of services provided to LGBTQ individuals.

2012 Health Equality Index Leader
Courtesy Human Rights Campaign

The HEI tests for the “core four”

  1. Patient Non-Discrimination
  2. Equal Visitation
  3. Employment Non-Discrimination
  4. Training in LGBT Patient-Centered Care

Responses to these questions are returned to the participating agencies in a comprehensive document for their use in service planning.

The U.S. Department of Health and Human Services Secretary Kathleen Sebelius describes the HEI as “an important tool for making sure LGBT individuals and families are treated with the same respect and care in these situations as anyone else.  It shines a light on what our country’s health institutions are doing to better serve LGBT patients.  And it’s very encouraging to see more institutions being recognized as “Leaders in LGBT Healthcare Equality.” Read More…

Participating organizations reap several benefits including free online training for staff at all levels,a customized needs assessment for planning, as well as featured status in the HEI report as Equality Leaders.

Registration is free and open to all healthcare organizations in the U.S. with ten or more employees, whether inpatient or outpatient, network or individual facility.

The following are some Suggestions for Medical Staff interacting with LGBTQ Patients:

  • Assumptions: Do not assume the sexual identity or orientation of your patient please ask in a proper manner.
  • Education: Learning about LGBTQ sexuality and sexual practices will allow healthcare providers to better assess patients’ support.
  • Language: Be aware of the language used as well as cultural nuances of the LGBTQ population, including celebrations of the community such as gay pride, symbols that are representative such as rainbow flags and pink triangles and terms like butch, femme, dyke, and queer.
  • Communication: Properly educate patients about the effect of illnesses and medical treatments on sexuality.
  • Compassion: Provide sensitive and compassionate service, if uncomfortable with learning about a patient’s sexuality be honest and let a patient know.
  • Respect: Be respectful of a patient and the information they are sharing, this includes confronting coworkers of inappropriate comments.

Federal Benefits after DOMA

On Friday June 28, 2013, a memorandum was issued from the United States Office of Personnel Management(OPM) in response to the repeal of DOMA . This memorandum simply highlights federal employee benefits that are now available to married gay and lesbian couples.

medium_8612879161These now include changes to:

  • Health insurance(FEHB):
  • Life insurance (FEGLI)
  • Dental and Vision(FEDVIP)
  • Longterm Care Insurance (FLTCIP)
  • Retirement
  • Flexible Spending Accounts

According to the OPM, employees and annuitants will have 60 days from June 26, 2013 until August 26, 2013, to make immediate changes to their insurance  enrollments.

Those seeking retirement benefits will have two years from the date of the Supreme Court’s decision to tell the OPM of their marriage which now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital status.

View OSP memorandum by Elain Kaplan:

[gview file=”http://www.govexec.com/media/gbc/docs/pdfs_edit/062813e2.pdf”]

 

Michigan LGBT Couples Receive More Good News

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by Logan Keziah

Michigan LGBT couples receive more good news. U.S. District Court Judge David S. Lawson, ruled that a law banning school districts and local governments from offering health benefits to domestic partners of public employees was unconstitutional. The law, signed by Governor Snyder in 2011, violates the Equal Protection Clause of the Constitution.

Although the state of Michigan had enacted an amendment in 2004 banning gay marriage, recent developments with the Supreme Court striking down DOMA, coupled with other litigation efforts, and the swaying of public opinion towards supporting marriage equality, may exert the right amount of public pressure to get a measure on the ballot to repeal the 2004 amendment in 2016. The image below, created and circulated by Equality Michigan, illustrates the shifting public opinion of Michigan residents in support of marriage equality. The shifting of the public opinion in Michigan, reflects the national shift of opinion in support of marriage equality.

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The striking down of the domestic partner benefits ban is just one example of how the Supreme Court’s decisions last week may affect the litigation efforts of LGBT couples across the country. It will be interesting to see how federal judges continue to rule on cases questioning the constitutionality of gay marriage bans.

According to the Huffington Post:

Devin Schindler, a constitutional law expert at Thomas M. Cooley Law School in Grand Rapids, said the judge still could make a ruling without a trial, after lawyers further develop the case through depositions, if necessary, in the weeks ahead.

The Michigan attorney general’s office said it was disappointed that Friedman didn’t dismiss the lawsuit but added: “We look forward to aggressively defending Michigan’s constitution.” Read Full Article

Marriage Equality for LGBT Immigrants

Yesterday, the LGBTQ Community celebrated the end of the Defense of Marriage Act (DOMA). However, the pathway to marriage equality has additional barriers for LGBT immigrants. While some celebrated the basic acknowledgment of their relationships, others like Sean Brooks and his husband Steve celebrated the end of deportation proceedings.

While DOMA was in effect, same sex married couples faced separation when their partner’s visas expired.  For other LGBTQ Immigrant couples like Christina and Eve, their family was strained because DOMA denied them the ability to petition for a green card. Christina who is a veteran married Eve who is an immigrant, and DOMA did not afford them the same rights and privileges as heterosexual couples. With the repeal of “Don’t Ask Don’t Tell”, the elimination of DOMA marks another leap toward marriage equality.

In the gang of  8’s immigration legislation, an amendment to include same sex couples in immigration reform was shot down by the political voices of Lindsay Graham and Marco Rubio.

“Can you imagine pitting the L.G.B.T. community against the Hispanic community?” an aide to Senator Robert Menendez, a member of the Gang of Eight, told me before the vote. “Are we crazy?”

The end of DOMA signals the end of oppression for the LGBTQ community in many aspects of American culture; specifically for immigration proceedings- what should families know? ~ The New Yorker

Immigration Equality set out to write a checklist of what families should know. At  the top of that list is the confirmation that same sex couples be able to apply for green cards and be allowed to apply even if the state of application does not recognize marriage equality.

In an interview with Kevin Johnson, Dean of the UC Davis School of Law and an immigration law expert, he stated the legalities were quite complicated.

“It’s far easier to change the law to recognize same-sex marriages than to wait for the courts to do it,” he said.

It’s not likely this will occur via immigration reform, though. Senate Judiciary Committee members opposed to Leahy’s original amendment in May said they feared it could bring down the entire bill. His latest amendment faced slim chances of getting a floor vote, and most likely won’t in light of the Supreme Court decision.

The Senate could vote on the immigration package as early as this week, and there’s a good possibility it will be approved. But all bets are off in the Republican-led House, which has yet to come up with its own comprehensive immigration plan.

DOMA Repealed Whats Next?

Across the nation, supporters of LGBTQ legislation joined Edie Windsor of New York in celebrating the Supreme Court ruling to repeal  DOMA (Defense of Marriage Act) in a 5-4 vote. On November 9th, 2009, Edie Windsor sued the federal government after being taxed $363,000 after the death of her spouse Thea Spyer in 2009.

For those who are not familiar with DOMA , it is a piece of legislation signed into law by President Bill Clinton in 1996 as a way to define and protect the institution of marriage. It was meant to establish a Federal definition of: (1) "marriage" as only a legal union between one man and one woman as husband and wife; and (2) "spouse" as only a person of the opposite sex who is a husband or wife.

Section three of DOMA prohibited the federal government from recognizing marriages between gay or lesbian couples despite a legal marriage certificate within their state. Meaning these couples could not benefit from federal programs including healthcare and spousal supports, therefore limiting the rights of LGBTQ families. IMG_5788

What does it mean now that DOMA has been repealed?

  • The federal government now recognizes legal marriages of same sex couples.
  • Binational couples will now have the ability to sponsor United States residency for their partners.
  • Military families will now receive military health insurance, relocation assistance, and surviving spousal benefits.
  • Health insurance and pension protections are now available for deferral employees’ spouses.
  • Social security benefits will now be accessible for widows/widowers.
  • Joint income tax filing and exemption from federal state taxes.

Also in California, Proposition 8 has also been ruled unconstitutional.  The Proposition 8 decision now eliminates the confusion that plagued same sex couples since being legalized and then banned in 2008.

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Chief Justice Roberts writes:  “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” If you think there is a little disconnect here — the U.S. government didn’t defend DOMA in the Windsor case yet the court ruled in that case — you have a point.  But this only serves to reinforce the new ground rules in same-sex marriage: We still don’t know what states can and cannot do regarding their own same-sex marriage laws. Read More…

What Does the Future Hold?

Although there is now recognition on the federal level, many states are still struggling with marriage equality. Currently, 13 states now acknowledge same sex marriage, and over 30 states ban it. There is still work to be done.

 

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