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Will the end of DOMA be the Berlin Wall for the LGBT Community?

March 7, 2011

I pride myself on being aware of what is going on with the Lesbian, Gay, Bisexual and Transgender (LGBT) community. I was pleasantly surprised last year when Don’t Ask, Don’t Tell (DADT) was repealed and am waiting to see when that law will become a reality. If you had asked me in January, what’s next for the LGBT community in the United States, I would have said “not much” based on the new Congress. Then President Obama announces that he directed the Department of Justice to no longer defend the Defense of Marriage Act (DOMA) cases based on Section 3 of DOMA.

Pat Baillie at the 2010 Leading Diversity Summit
Pat Baillie at the 2010 Leading Diversity Summit

DOMA, which was signed into effect in 1996, defines marriage to be “a legal union between one man and one woman as husband and wife.” President Obama’s direction on Section 3 does not overturn DOMA in its entirety, but directs the government to not defend cases where there is an otherwise valid marriage of same-sex couples—who were married or live in jurisdictions that recognize those marriages. Couples from outside the U.S. where same-sex marriage is recognized (such as, Argentina, Belgium, Canada, Iceland, Netherlands, Norway, Portugal, South Africa, Spain, Sweden and in Mexico City) and U.S. couples who have been married in states that recognize same-sex marriages (such as Connecticut, District of Columbia, Iowa, Maine, New Hampshire and Vermont) would be considered legally married. If the courts agree that Section 3 is unconstitutional, then the Department of Justice cannot defend DOMA in these cases. (See a complete list).

A bill to repeal DOMA was also introduced in the Senate by Senator Dianne Feinstein. This still has a long way to go, but it does begin to address the issues that companies deal with every day as the HR and finance departments try to maintain a “separate but equal approach” to employee benefits.

It takes time and money to keep multiple systems in place. For example, separate accounting must be done to track domestic partners (who pay for health benefits after taxes) and opposite sex married partners (who pay for health benefits before taxes). [More information on tax equality]

More companies are trying to fix these inequalities with steps toward pay equity for LGBT employees, but the source of all this confusion lies in DOMA and the inability to amend federal laws impacting recognized relationships. Many of the questions coming from the implementation of DADT surround what benefits gay and lesbian military members will receive for their families.

Beyond the corporate or government perspectives, there is the added effort that individual employees deal with on a daily basis. Out & Equal Associate Director of NETWORKS!, Stephen Gould, added this personal insight regarding how the IRS is now recognizing community property law for same-sex partnerships in California and Washington. The end result Stephen believes is that we are “seeing more complications in how families are juggling their status from one jurisdiction to another.”

Pat Baillie
Pat Baillie, Associate Director of Training and Professional Development at Out & Equal

The discussion around workplace inclusion doesn’t end with the passage of DADT and DOMA. There are 1,138 rights from taxes to survivorship that married couples are granted at the federal level. Each one of those rights will have to be reviewed and updated, but as each one is changed, we are all one step closer to true equality in the workplace and being able to take care of our families. Out & Equal has been working for years on this and we can now see progress toward our goal of LGBT workplace equality.

Pat Baillie joined the United States Air Force after college and worked as a Weapons Controller and Space Operations officer. She was also active in LGBT causes her entire career and decided to retire on the day that President Clinton announced “Don’t Ask, Don’t Tell.” She was then able to publicly come out and was the featured speaker at the Veteran’s Day memorial in Sacramento, California in 1993. Pat is currently the Associate Director of Training and Professional Development for Out & Equal, a national, nonprofit organization dedicated to achieving workplace equality for lesbian, gay, bisexual, and transgender employees and professionals.

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