While President Obama is to be applauded for finally taking that first very small step towards fulfilling his promises of equality for GLBT Americans by signing yesterday a memorandum extending some benefits to the domestic partners and non-biological, unadopted children of civilian Federal employees, the more we learn about the memo, the less impressive this move becomes.
In his remarks, the President stated
Currently, for example, LGBT federal employees can't always use sick leave to care for their domestic partners or their partners' children. Their partners aren't covered under long-term care insurance. Partners of American Foreign Service officers abroad aren't treated the same way when it comes to the use of medical facilities or visitation rights in case of an emergency.
These are just some of the wrongs that we intend to right today.
Going back to the announcement that the President was going to sign this memo, in the frenzy of the hasty announcement on Tuesday evening, some outlets reported that the benefits extended would include health care. These early reports turned out to be incorrect, as many surmised, because such benefits probably require a repeal of the D[enial] of Marriage Act, or more specifically that act's provisions codified at 1 U.S.C. §7. Section 7 defines the term marriage and spouse for Federal purposes and thus the laws creating and extending healthcare benefits for the spouses and family members of Federal employees can't be applied to same sex couples and their children (unless the Federal employee is the legal parent of the children).
The mistake likely arose when the Long Term Care Insurance Program was mentioned. This is not healthcare coverage, but a form of insurance to "help pay for costs of care when enrollees need help with activities they perform every day, or you have a severe cognitive impairment, such as Alzheimer's disease." Access to the Federal Long Term Care Insurance Program (FLTCIP) is one of the benefits extended by the memo, however, this is not great benefit really since the domestic partners of Federal employees have always been able to apply and get Long Term Care Insurance from other providers. The government is not paying the premiums for the Long Term Care Insurance Program so the only thing being extended is the ability to have it fall under the government's provider program. There is no real savings involved since there are not subsidized premiums.
Also mentioned by the President was the ability of the federal employee to take sick leave to care for a partner or their non-biological, unadopted child that is the legal child of their partner. AmericaBlog gave the initial report that this sort of leave has been available since the mid 1990's. A 23 year Federal employee stated in the post
During the Clinton administration -- guidance was requested about whether sick leave could be used to take care of same-sex partners and/children. The answer came back that a federal employee could use their sick leave to take care of, attend doctor appointments, or even attend funerals for anyone who had the "close approximation of family". This was a guidance memo -- not policy -- but it has been available since the mid 1990's. The reason I know this is that I have worked for a DOD Agency for 23 years and even DOD allowed me to take sick leave to care for my partner and my non-bio child.
I did some checking and it turns out this is entirely correct. Regulations issued in December of 1994 in the Federal Register modified the Code of Federal Regulation to include a broader definition of family. The discussion from the Register states
Most of the commenters recommended that OPM use the broader definition of ``family member'' found in the Voluntary Leave Transfer Program. One commenter noted that this definition is more accommodating to the needs of a wide variety of family compositions. Another suggested that the broader definition would more faithfully fulfill the Federal Government's purpose of being a responsive, competitive, and model employer. One agency noted that the broader definition is consistent with the intent of the National Performance Review recommendations. Furthermore, the agency noted that the broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases.
In response to these comments and consistent with the requirements of the Federal Employees Family Friendly Leave Act, the final regulations include the broader definition of ``family member'' that is used in the Federal leave sharing program. For these purposes, ``family member'' means (a) spouse and parents thereof; (b) children, including adopted children, and spouses thereof; (c) parents; (d) brother and sisters, and spouses thereof; and (e) any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. The term ``children, including adopted children, and spouses thereof,'' as used in this definition, covers adult sons and daughters, whether disabled or not, and therefore permits an employee to use sick leave to arrange for or attend the funeral of an adult son or daughter who is over 18 years old and is not disabled. (emphasis added)
A quick search of CFR in the title on Administrative Personnel turned up that the definition was indeed put in place and has been active ever since 1994. The provision for Absence and Sick Leave can be found at 5 CFR §630.201(b)(5). The relevant except of the provisions of 5 CFR §630.201(b) are
Sec. 630.201 Definitions.
(b) Family member means the following relatives of the employee:
(1) Spouse, and parents thereof;
(2) Children, including adopted children and spouses thereof;
(3) Parents;
(4) Brothers and sisters, and spouses thereof; and
(5) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.
And since Secretary Clinton's move last month to extend benefits to the partners and children of GLBT State Dept. employees and diplomats, the members of the American Foreign Service have had the benefits President Obama mentioned. Secretary Clinton's move had been in response to a letter signed by more than 2,000 employees and the comments by openly gay former U.S. Ambassador to Romania Michael Guest, who left the diplomatic corps because of the inequities he and his partner faced throughout his years of service. Said Ambassador Guest in 2007 when he left the Department:
For the past three years, I've urged the Secretary and her senior management team to redress policies that discriminate against gay and lesbian employees. Absolutely nothing has resulted from this. And so I've felt compelled to choose between obligations to my partner, who is my family, and service to my country. That anyone should have to make that choice is a stain on the Secretary [Condoleezza Rice]'s leadership, and a shame for this institution and our country.
So as it turns out, two of the three provisions specifically mention by the President in his remarks have already been extended and the third really has no added value since the government isn't footing the bill for premiums. So the question remains, since the memo didn't extend healthcare benefits, pension benefits, absence and sick leave benefits or benefits for foreign service employees, what exactly does it extended beyond weak lip service to try to salvage a sinking DNC fundraiser? Today the fundraiser has seen even more GLBT leaders pull out including the President of the Vermont Senate, the executive director of the National Gay and Lesbian Taskforce and prominent gay philanthropist Bruce Bastian. That's in addition to the prior pull outs by the Human Rights Campaign, Empire State Pride, Democratic activist David Mixner, former Clinton aide Richard Socarides, and prominent GLBT blogger Andy Towle and his political director Corey Johnson.