UPDATE: I received Michael Guest’s testimony. It is below the fold.

A hearing on the Domestic Partnership Benefits and Obligations Act of 2009 (H.R. 2517), was held Wednesday before the Subcommittee on Federal Workforce, Postal Service and the District of Columbia. Testifying on the bill:

WITNESS LIST

PANEL I

Congresswoman Tammy Baldwin (D-2-WI)

Mr. John Berry, Director, Office of Personnel Management

PANEL II

Ms. M. V. Lee Badgett, Research Director, The Williams Institute, UCLA Law School

Mr. Greg Franklin, Assistant Executive Officer, Health Benefits, California Public Employees’ Retirement System (CalPERS)

Ms. Carolyn E. Wright, Vice President, Corporate Human Resources, American Airlines

PANEL III

Ms. Lorilyn Holmes, current federal employee; Reverend, Metropolitan Community Churches

Ambassador (ret.) Michael Guest, former career Foreign Service Officer

Dr. Frank Page, Pastor, First Baptist Church of Taylors; President, Southern Baptist Convention 2006

Statement on the legislation by Rea Carey, Executive Director National Gay and Lesbian Task Force Action Fund:

“Already, a majority of Fortune 500 companies offer their employees domestic partner benefits. So do more than 300 colleges and universities, more than 200 local governments and at least 19 states. This legislation has been endorsed by four major unions, together representing nearly two and a half million government employees.

“Polls conducted within the last year demonstrate that a majority of Americans believe that same-sex partners should receive federal benefits, and that fully 73 percent of the country believes that same-sex partners should be eligible for health insurance. Far from a radical social policy, this legislation would simply bring the federal government up to the standard endorsed by nearly three-fourths of U.S. taxpayers.

“In addition to the issue’s fundamental fairness, the federal government’s failure to provide domestic partner benefits also makes it significantly more difficult to recruit and retain the best people. Ambassador Michael Guest, who testified before the subcommittee this afternoon, recently left the State Department after being unable to secure health insurance benefits for his partner. Across the country, an unknown number of lesbian, gay, bisexual and transgender employees have done the same, leaving government for jobs in the private sector, where benefit coverage for same-sex partners is much easier to find.

“It is unconscionable that the federal government, the country’s largest civilian employer, does not already provide domestic partnership benefits. With this bill, the time has come to rectify this injustice. We thank the subcommittee for this hearing and we urge the House of Representatives to move swiftly to pass this important legislation.”

Berry’s testimony is below the fold.

STATEMENT OF

JOHN BERRY

DIRECTOR

U. S. OFFICE OF PERSONNEL MANAGEMENT

before the

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE

AND THE DISTRICT OF COLUMBIA

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

U. S. HOUSE OF REPRESENTATIVES

on

H.R. 2517, THE “DOMESTIC PARTNERSHIP BENEFITS AND OBLIGATIONS ACT OF 2009”

JULY 8, 2009

Chairman Lynch, Ranking Member Chaffetz, and Members of the Subcommittee:

Thank you for affording me the opportunity to testify today on behalf of President Obama and the Administration in support of H.R. 2517, which would provide health, life, and survivor benefits to the same-sex domestic partners of Federal employees.  

I first want to applaud Representative Baldwin and the cosponsors of H.R. 2517 for introducing this bill, and you, Mr. Chairman, for holding this hearing.  The White House and the Office of Personnel Management (OPM) wholeheartedly endorse passage of this bill.  In my remarks today, I will briefly describe the basis for our endorsement of the bill and offer a few technical suggestions regarding the language of the legislation.  

At my confirmation hearing, I said that two of my primary goals as the Director of OPM would be to make the Federal Government the country’s model employer and to attract the best and the brightest Americans to Federal service.  The passage of H.R. 2517 is essential to the accomplishment of both of these goals.

Under current law, the Federal Government cannot offer basic benefits like health insurance, life insurance, and dental and vision insurance to the domestic partners of our gay and lesbian Federal employees.  Opposite sex domestic partners are not eligible for these benefits either, but they may gain eligibility through a valid marriage.  Except in a few States, same-sex partners do not have that option.  And even where they do, their marriages are not recognized for purposes of Federal benefits because of Public Law 104-199, the Defense of Marriage Act (DOMA).  In the interest of full disclosure, I personally stand to benefit from this legislation, as my partner of 13 years will be eligible to enjoy the benefits of this legislation, if enacted.

This policy is unjust and it directly undermines the Federal Government’s ability to recruit and retain the nation’s best workers.  Historically, the federal government has in many ways been a progressive employer, but we’re behind the private sector and 19 states, including Alaska and Arizona, on this one.  Almost 60 percent of Fortune 500 companies already offer similar benefits to the same-sex domestic partners of their employees.  These companies include American Airlines, Chevron, Archer Daniels Midland and Lockheed Martin.  The Federal Government does not effectively compete with these companies for every talented person when we fail to offer comparable job benefits to our employees.

The President took an important first step toward addressing these shortfalls when he signed a memorandum last month directing Federal agencies to extend benefits to same-sex domestic partners of Federal employees to the extent permitted by existing law.  As the President noted when he issued that memorandum, however, statutory changes are necessary before the Government can offer its gay and lesbian employees some of the most important benefits, including health and life insurance.  Enacting this bill would address the problem and provide for true equality in benefits for all Federal employees and its passage is supported by the President.

The bill proposed by Representative Baldwin, H.R. 2517, would provide benefits for same-sex domestic partners of Federal employees.  They would be eligible for coverage under Title 5 insurance-benefit programs, retirement and disability benefits, the Family and Medical Leave Act, and the Federal Employees’ Compensation Act, among others.  

I suspect that the Committee is interested in knowing how much it will cost the Federal Government to provide these benefits.  The cost of extending these benefits to same-sex domestic partners is negligible.  

Any additional premiums for providing life, dental, and vision insurance to same-sex domestic partners will be borne entirely by the gay and lesbian employees who enroll their partners in those benefit plans.  To add domestic-partner health-insurance and survivor benefits for both Federal workers and retirees would cost approximately $56 million in 2010.  This marginal increased cost – which equates to about 2-tenths of a percent of the entire cost to the Federal Government of Federal employee health insurance – would be funded by the additional Government contribution payments for self and family health insurance plans.  This includes $19 million in savings because retirees who elect survivor benefits for their domestic partners will experience a reduction in their annuity payments.  In addition, as drafted, the bill does not address the tax treatment of the resulting benefits.  Under current law, employer-provided health to a non-spouse, nondependent such as a domestic partner is taxable income to the employee.  There may also be tax issues with respect to providing other benefits to nonspouse/nondependents of employees.  The bill should clarify the tax treatment of the benefits. The Administration also notes that this legislation may have implications for other benefits programs, for example Social Security, across government.  The intent of Congress regarding these other benefit programs needs to be clarified.

Simply put, extending benefits to same-sex partners would be a good business decision.  American Airlines and the other sixty percent of the Fortune 500 companies who provide these benefits can testify to that.  Therefore, I am pleased to provide my full support to passage of H.R. 2517.

Technical Comments

After reviewing the text legislative language of H.R. 2517, we have some technical comments.  I want to describe for you a few examples of technical concerns that, I believe, illustrate the need to revise the bill’s structure to ensure that it meshes with the laws governing the particular benefits programs that would be affected.  Revising the bill to address these concerns would eliminate ambiguity regarding some of its effects and would greatly facilitate effective implementation.

One of our technical concerns is that the bill provides for coverage of domestic partners of Federal employees, but does not include current Federal annuitants.  That means the current language of the bill would exclude annuitants with same-sex partners from electing benefits coverage.  In addition, a strict interpretation of the bill would raise questions as to whether benefits would continue to be available to same-sex partners once employees retire.    

Second, this would require that affidavits pertaining to the eligibility of domestic partners for Federal benefits be filed with OPM.  We do not think it is practicable for OPM to play this role.  Each Federal agency carries out human resources management functions, including benefits enrollment and payroll deductions, for its own employees.  Requiring affidavits to be filed with OPM would be at odds with current provisions of law and regulation governing Federal employee benefits, which recognize that OPM is not a central clearinghouse for all Federal employees.  

Third, the legislation needs to take into account that differences in the administration of benefits between a domestic partnership, certified with an affidavit, and a State-sanctioned marriage may occur.  The bill provides that, if a domestic partnership dissolves except by death, the former domestic partner will have the same rights and obligations as a former spouse.  By law, a former spouse is eligible to enroll in the Federal Employees Health Benefits (FEHB) Program if he or she meets certain eligibility criteria.  The former spouse must be entitled to a portion of an annuity and must not have remarried before the age of 55.  

Under H.R. 2517, there is no language allowing us to enforce a similar obligation for the former domestic partner under the same circumstances.  Entitlements and obligations for former spouses under the involuntary division of property are attributed to court orders with respect to divorce, annulment, and legal separation.  In the absence of domestic relations law for domestic partnerships in many States, we believe that we would need more prescriptive language in the bill to avoid potential legal hurdles that could occur.  

In order to fully address these and other technical issues, we strongly encourage you to amend the applicable provisions of the United States Code.  This would provide continuity and would resolve ambiguities highlighted by the examples I have provided.  It would also preserve the accuracy of Title 5 for those who administer its provisions in the future.  

We would be pleased to work with the Committee to resolve the technical concerns expressed here today and offer you our technical assistance to ensure the legislative intent of this bill is embedded in Title 5.

Conclusion

Again, we welcome the introduction of this bill and strongly support its passage. By your efforts, you have provided a valuable  a valuable opportunity for the Federal Government to not only enhance the benefits it can offer as a recruitment and retention tool, but, most importantly, to prove that  we recognize the value of every American family and are committed to the ideal of equal treatment under the law that our Founders envisioned.

Thank you.  I look forward to continuing our work together, and I will be glad to answer any questions.

Former Ambassador Michael Guest:

Oral Statement by Michael Guest

Hearing on Domestic Partnership Benefits and Obligations Act

House Subcommittee on Federal Workforce, Postal Service, and District of Columbia

Committee on Oversight and Government Reform

July 8, 2009

Mr. Chairman, thank you for inviting me to offer my perspective on this bill.  

For more than half of my life, I served the United States as a career Foreign Service officer.  I was honored to represent our country and am proud of my accomplishments. But in December 2007 I ended my career after having sought, without success, to amend policies that discriminate against gay and lesbian Foreign Service personnel.  No longer could I accept that, while sharing the same service obligations as my colleagues, my family had no benefits, simply because I’m gay.  My partner had sacrificed his career to support me in serving the country that we both love, and in return was treated as a second-class citizen in our overseas postings.  And I couldn’t reconcile how an Administration so consumed with the fight against terrorism would knowingly put my partner’s life at risk, and indeed jeopardize the security and effectiveness of our embassy communities, through policies that based protections needlessly on marriage – an option that of course is unavailable to us.

Mr. Chairman, the State Department-specific inequalities that I challenged frame my perspective on this issue and, as you will see, on our country.  As examples, the Department would not train my partner to recognize a terrorist threat or counter-intelligence trap, thus putting his life and, indeed, U.S. interests at risk.  He had no guarantee of being evacuated, whether for life-threatening medical reasons or to escape political violence that might close the embassy.  The Department would not train him in the informal community leadership roles that he, in fact, was expected to fill.  Unlike spouses, he had no diplomatic protections, nor could he compete for jobs the embassy needed to fill, regardless of qualifications.  And while the Department paid to transport pets to and from post, it wouldn’t pay my partner’s airfare, as if the government for which he sacrificed so much considered him to be less important than a dog.  

I trust you see the ironies.  As a diplomat, I advanced American principles of equality, fair play, and respect for diversity in the countries to which I was posted.  And yet the very agency that charged me to do so showed no respect for those principles in how it treated those of us who are gay or lesbian.  Nor did that agency, which drills crisis management and diversity awareness and leadership skills into employees, show any concern for issues of health, safety, morale, and effectiveness that stemmed from these discriminatory policies.

Mr. Chairman, I still believe America is the greatest country on earth.  But my experience in seeking redress of these inequalities made me realize that this is not the America I believed in when I came to Washington, some 30 years ago, to work as an intern here on Capitol Hill. You see, the issue we are here to address is not, as you’ve heard, personal belief, nor is it about the definition of marriage. Those are red herrings.  This bill is about workplace fairness. And it’s about civil rights.  Somehow we as a country have allowed the word “equality” – which is an absolute term – to be redefined to mean more rights for some citizens and fewer for others.  LGBT Americans are not demanding so-called “special rights,” another red herring, through this or any other bill – in fact, you might say that current law gives heterosexuals special rights.  How is it that we’re still debating, even here today, whether citizens who are gay should enjoy the same fundamental protections enjoyed by others with whom we live in our communities, work in offices and factories, and yes, share fellowship in our places of worship?  And in that regard I might mention that when I studied at Furman University, many years ago, I attended First Baptist Church in Taylors, South Carolina, represented here by a panelist from the Southern Baptist Convention who sits next to me yet is figuratively on the opposite side of this table.

Mr. Chairman, I was reluctant to relive before this committee the most painful decision of my life, that of leaving the career I loved.  But for me this is a matter of closure.  When President Obama took action June 17 to end the State Department discrimination I’ve described, I took my partner’s hand and quietly apologized that the decision hadn’t come sooner, for his sake.  Now the spotlight is on Congress.  The bill before you addresses a range of benefits that remain out of reach for federal employees with same-sex partners.  These benefits, which the first panel has already described, are as critical to our families as they are to yours.  I respectfully ask that you close this gap.      

You’ve heard many solid arguments for this bill based on what I call “mechanics” – things like worker retention, budgetary impact, and comparisons to corporate policies.  But I ask you to support this legislation for other reasons.  

First, principle is at stake.  Equality, fair-mindedness and respect for diversity are at the heart of America’s identity. This bill would honor those principles and bring us closer to fulfilling those ideals.  

But second, this bill is about people.  Those of us who are gay have the same aspirations, the same hopes, and the same needs as any of you.  We have families that we love, and that we need to take care of, just as you do.  We are humans, like you.  We love and support our country, like you do.  We ask only to be treated fairly and equally, and that our families be provided with the same employer protections and benefits that are provided to yours.

Across almost three decades in Washington, I’ve heard that policy issues related to gay, lesbian, bisexual and transgender Americans are just too hard to tackle, that other agendas must come first, that the time isn’t now.  Well, the time is now.  This issue is hard only because we make it so.  I ask that this committee restore federal leadership on this issue and not allow our equal and fair treatment as fellow citizens to become a partisan matter.  Surely we can come together as a country, and as a people, and do the right thing for families who have yet to realize the equality to which we, as citizens, should be entitled.  

Thank you.

Kerry Eleveld of The Advocate covered the hearing live on Twitter.  

Chris@Law Dork:

GOP Rep. Jason Chaffetz (UT) repeatedly expressed repeated concerns about  discrimination . . . against heterosexuals. Among his comments, per Eleveld, is  one that “heterosexual couples who are not married would not have the same  benefits as same-sex couples under this bill.” Baldwin, per Eleveld, responded:  “Should heterosexuals desire those benefits, they would have the opportunity to  marry.”

…In order to keep this bill centered on equal rights and not “special”  rights — clearly the angle sought out by Rep. Chaffetz — and in order to  simplify the statutory language over time as changes in marriage laws continue,  it seems to me that this legislation needs to be amended, hopefully in  committee, in such a way that a state’s recognition of same-sex relationships  supersedes and substitutes for the affidavit requirement.

 Section 2 (a) of the bill reads:

(a) In General- An employee who has a domestic partner and the domestic  partner of the employee shall be entitled to benefits available to, and shall be  subject to obligations imposed upon, a married employee and the spouse of the  employee.

I would amend it as such:

(a) In General- An employee who has a domestic partner and the domestic  partner of the employee shall be entitled to benefits available to, and shall be  subject to obligations imposed upon, a married employee and the spouse of the  employee. If a state otherwise formally recognizes same-sex relationships,  whether through marriage, civil unions, domestic partnership registry or  otherwise, proof of this recognition will supersede and substitute for the  affidavit requirement otherwise imposed in subsection (b).

The “substitute” language will prevent the three different categories of  relationship problem that I discussed above. The “supersede” language will  prevent opponents from saying that same-sex couples are allowed to get married  in state “X” but even if they choose not to do so could still receive the  benefits contained in this bill without getting married.

Pam Spaulding

Pam Spaulding

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