President Obama signed a presidential memorandum June 17 granting same-sex partners of federal employees access to some of the same benefits enjoyed by heterosexual married spouses.
The president’s directive applied to employees in both civil- and foreign-service positions.
John Berry, openly gay director of the Office of Personnel Management, said Wednesday that the directive does not include health benefits because the 1996 Defense of Marriage Act, which bans same-sex marriage at the federal level, would prohibit such a change.
The memo, which differs from an executive order in that it will expire at the end of Obama’s term, allows for the same-sex partners of civil-service employees to be eligible for long-term-care insurance programs, and for the employees to use sick leave to take care of a domestic partner or non-biological, non-adopted children.
Same-sex partners of foreign-service employees will now be able to use medical facilities at their partners’ posts, qualify for medical evacuation from the posts, and will be included in family size when housing allocations are determined.
The personnel changes do not apply to military employees, as “Don’t Ask, Don’t Tell,” the military’s ban on openly gay servicemembers, would prevent the implementation of such policies.
Berry called the changes “the first step, not the final step” in guaranteeing equal rights for LGBT federal employees.
“This is an attempt to get our federal house in order, which is very important to do,” Berry said. “It’s an example of practicing before you preach, and the president is taking bold action to do just that.”
Leonard Hirsch, chair of the Federal GLOBE, which represents LGBT federal employees, called the memo “a significant next step toward equal rights for LGBT employees in the federal government.”
Hirsch said the president’s directive provides for benefits “to the extent that he is permitted to do so under the administrative rule,” referring to the limitations of DOMA.
“That sounds bureaucratic, and it is,” Hirsch said. “But this is an organization that is a bureaucracy and is governed by law. The administration has been carefully looking at the laws and trying to figure out where there was administrative jurisdiction that they have.”
Berry said the directive stemmed from a several-month review conducted by his office and the Department of State to investigate what benefits the agencies were able to legally grant to same-sex couples.
Berry said that while some agencies have already provided such benefits to their LGBT employees, the memo eliminates any ambiguity from the government’s policies.
“Previously, employees were subject to the whim of their supervisors, and if they had an enlightened supervisor, then yes, there was a possibility [that they would grant equal benefits],” Berry said. “But we’re making this no longer optional. It’s now mandatory and clear that this is now the policy of the federal government. Federal employees will no longer have to rely on whether their supervisors are enlightened or not.”
The memo instructs heads of other federal agencies to also conduct their own investigations to determine if they, too, can expand their personnel policies to the same-sex partners of their employees, and also directs OPM to work with all federal agencies over the next three months to ensure full understanding of the federal government’s employment policy, which prohibits discrimination based on sexual orientation and gender identity.
“It’s the view of the president and this administration and a bedrock principle of federal civil service and a statutory mandate that the federal government does not make employment decisions based on anything but the individual’s ability to do their job,” Berry said. “That’s why the president believes in reaffirming that it’s illegal to discriminate on the basis of sexual orientation or any other non-merit factor. OPM will issue guidance in the next few weeks to help agencies implement that law and that principle.”
Berry denied that the president’s memo was motivated by the sharp backlash from the LGBT community after the Department of Justice’s recent legal brief in support of DOMA.
“This is in no way a response to any outside pressure,” Berry said. “This is part of a clear strategy the president and the administration have.”
Berry said the most effective means to guarantee full benefits for LGBT employees is through the repeal of DOMA, which he said the president supports. Berry could not give a timeline for the repeal of the law, but said Obama will continue to advocate for such an action, as well as for the passage of an inclusive hate-crimes law, employment nondiscrimination law and the repeal of “Don’t Ask, Don’t Tell.”
“None of that will happen until we have 218 votes in the House and 60 votes in the Senate. We’re there on hate crimes, but still have a ways to go on the next three. The president is supportive and wants to see them all done. The gay community, of which I’m a member, can be extremely proud that this president is with us and stands with us 100 percent on the core issues we care deeply about right now.”
Last month, U.S. Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine), along with Reps. Tammy Baldwin (D-Wisc.) and Ileana Ros-Lehtinen (R-Fla.), introduced the Domestic Partnership Benefits and Obligations Act in the Senate and House, which seeks to provide same-sex partners of federal employees all the same benefits — including health insurance, retirement benefits and family leave — to the married spouses of heterosexual federal employees.
The Senate bill has 23 cosponsors, including local Pennsylvania Sen. Bob Casey (D), and is currently in the Homeland Security and Government Affairs Committee, while the House legislation has 76 cosponsors, including local Rep. Joe Sestak (D-7th Dist.), and is awaiting approval of the Judiciary Committee.
Similar bills died in committee in the last legislative session.
Jen Colletta can be reached at [email protected].