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September 22, 2014

What’s New on the National Stage

SAGE continues to lead federal efforts to improve the lives of LGBT older people, alongside our national partner organizations in the LGBT and aging fields. This summer, we collaborated with other advocates to win Medicare coverage for transgender older people, FMLA benefits for same-sex couples and an executive order that extends more protections to LGBT people. Learn more about new federal policy updates below.

Executive Order to protect LGBT Workers
SAGE was privileged to be in the room with President Barack Obama on July 21, when, with the stroke of a pen, he put in place protections that will help millions of lesbian, gay, bisexual and transgender (LGBT) older adults.  In the executive order that he signed that day, he ensured that transgender federal workers are protected against job discrimination based on gender identity.  He also ensured that LGBT employees of federal contractors will be protected against discrimination, which, according to the UCLA’s William’s Institute, protects 34 million of these workers today. Many LGBT older adults, after facing a lifetime of discrimination and lower earnings across the lifespan, continue to workto maintain their economic security.  We welcome the news that this generation--who fought to help many LGBT people out of “the closet”--will be able to bring their full selves to work, at more workplaces, without fear of discrimination.

Medicare Will Cover Transition-Related Care
In May, the U.S. Department of Health and Human Services (HHS) Department Appeals Board (DAB), an independent federal appeals board, ruled that Medicare must cover medically necessary care for individuals with gender dysphoria, just as it does for those with other medical conditions.  In short, Medicare will now cover transition-related care for transgender older adults.  SAGE applauds our advocacy partners—GLAD, the ACLU, Lambda Legal, and NCLR—for  their tireless advocacy on this issue.  It was a life-changing victory for transgender older adults, who are finally on a more level playing field with other Medicare recipients.

Family and Medical Leave Act (FMLA) Benefits Extended to Same Sex Spouses
The 1993 Family and Medical Leave Act (FMLA) allows eligible employees to take 12 weeks of leave from their jobs without pay for family and medical reasons.  With the Windsor decision in place (the Supreme Court case that cleared the way for the federal government to recognize same-sex marriages), the Department of Labor (DOL) announced in August 2013 that it would recognize same-sex marriages, but only those of couples who live in a state that recognizes their marriage.  In June of this year, the DOL announced a proposed “place of celebration” rule, meaning regardless of where a couple lives or moves, the DOL would recognize that same-sex marriage for FMLA purposes.  If and when the rule becomes final, it would ensure that LGBT individuals who take professional leave to care for a sick spouse will enjoy job security—and a little more peace of mind. 

Social Security

With the Windsor decision in hand, President Obama directed the Department of Justice (DOJ) to review every federal law, rule, policy and practice implicating marriage. On June 20, 2014, nearly a year after the date of the Windsor decision, DOJ completed its comprehensive, year-long review, providing guidance to federal agencies on Windsor implementation.  What does this mean? According to the review, all federal agencies have now implemented Windsor, meaning they are treating married same-sex and opposite-sex couples the same, to the fullest extent possible, under the law.

But what about Social Security benefits for same-sex couples? Here are a few points to help answer this complex question:

 

  • If you are married and living in a state that recognizes marriage equality, generally speaking, SSA (the Social Security Administration) will recognize your marriage.
  • If you are in a Civil Union or Registered Domestic Partnership and living in a state that provides those forms of relationship recognition, generally speaking, SSA is going to recognize your relationship as if you were married.
  • If you are married and were living in a state that recognizes marriage equality when you applied for Social Security benefits, or while your application was pending, SSA will honor your marriage even if you move.
  • If, however, none of the above apply (for example, if you’re married but have always been living in a state that does not recognize marriage equality), you will not receive spousal SSA benefits.  For example, if you have always been living in Biloxi, Mississippi, but flew to Washington, DC, just to get married, SSA will not recognize your marriage.

 

One final important message on this issue:  regardless of where you live, we recommend you apply for spousal Social Security benefits, as new or increased benefits will be granted retroactively.  If the law changes through legislation or litigation, you should get SSA benefits retroactive to the date of your application.

--Posted by Aaron Tax

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