GLAA endorses Human Rights Marital Status Clarification Amendment Act
GAY AND LESBIAN ACTIVISTS ALLIANCE OF WASHINGTON
Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013
October 25, 2004
The Honorable Jim Graham
Subcommittee on Human Rights, Latino Affairs,
Asian and Pacific Islanders, and Property Management
Council of the District of Columbia
1350 Pennsylvania Avenue, NW
Washington, D.C. 20004
Dear Councilmember Graham and members of the Subcommittee:
Please accept this letter as the official statement for the record by the Gay and Lesbian Activists Alliance of Washington, D.C. (GLAA) for your roundtable discussion in support of Bill 15-1075, the Human Rights Marital Status Clarification Amendment Act of 2004 conducted on October 20, 2004.
We would like to thank you for introducing the bill and holding a prompt roundtable discussion. We would also like to thank Councilmembers Patterson, Fenty, Ambrose, Catania, Evans, Brazil, Schwartz, and Mendelson for co-sponsoring this bill.
Two of the most important laws affecting gay and lesbian people in the District are the Human Rights Act of 1977 (HRA) and the Health Care Benefits Expansion Act of 1992. GLAA played a significant part in the enactment of both laws and their subsequent implementation, expansion, and protection. However, the two laws have not been harmonized. The HRA a model law for the nation because of its breadth and depth includes among its 16 categories, marital status. Marital status is defined as:
2-1401.02(17) "Marital status" means the state of being married, single, divorced, separated, or widowed and the usual conditions associated therewith, including pregnancy or parenthood.
Wisely, the law’s authors sought to include every legally recognized status relating to marriage (i.e., divorced, separated, widowed, and single). Since 1992, although not implemented until 2002, we have a new legal status. Domestic Partners are not legally married, single, divorced, separated, or widowed. It is an entirely new status that should be recognized in the HRA and extended the same protections from discrimination as the other five.
Some irresponsible journalists have suggested that this bill is a back-door to marriage. It is not. Adding “in a domestic partnership” to the list no more makes domestic partners married than does having divorced or single on the list already make them married. Rather, it is a logical expansion of the Human Rights Act to harmonize it with the Health Care Benefits Expansion Act. As much as we would like to see the District, and the rest of the country, recognize marriages between same-sex couples, this bill will not achieve it.
With regard to health benefits, we note that most employer insurance programs and many other benefits are regulated by the Employee Retirement Income Security Act (ERISA) which preempts local laws.
The preemption of ERISA has been upheld in at least two cases where the claim for domestic partner health benefits explicit. The city of Portland, Maine lost in February, 2004 in Catholic Charities of Maine Inc. v. Portland D. Maine in their claim that ERISA does not apply to employers receiving certain housing and community development funds. Similarly, San Francisco, California lost their similar case in Air Transport Association of America v. San Francisco.
What this bill intends to do is primarily protect someone who is fired, refused employment, denied promotion, refused housing, denied service, etc. because they are in a domestic partnership. While same-sex domestic partners may have some basis for protections under the sexual orientation category, opposite-sex domestic partners (e.g., a domestic partnership involving two sisters or a grandparent and a grandchild) have no existing protections. It should go without saying that it is absurd to suggest that this bill would turn grandparent/grandchild dome! stic partners into a married couple.
We also want to make sure that people are free of this discrimination so that there is not a fear of taking advantage of rights and responsibilities of domestic partnership.
While marital status discrimination may not be very common, Kenneth Saunders, the director of the Office of Human Rights, informs us that there have been three claims of marital status discrimination while he has been the director. According to Mr. Saunders at the roundtable, there have not been any claims of discrimination based on domestic partnerships, but that may well be a function of the lack of inclusion in the law.
We are aware of a GLAA member who was unable to get the George Washington University Hospital to recognize his domestic partner when he entered the hospital for surgery. This is especially egregious because D.C. law grants domestic partners the right to make emergency medical decisions in case the partner is unable to do so himself. In this instance the hospital finally acquiesced, but only after considerable effort by a long-time activist with in-depth knowledge of the law, and the tenacity not to be denied his rights. If this were an emergency, and not a planned procedure, the situation could have created a serious problem.
Thank you for your continued efforts for strengthening the District’s Human Rights Act and domestic partnership law.
cc: All Councilmembers
Kenneth Saunders, Office of Human Rights