For Uncle Sam, issues of same-sex bias, transgender equality


Karen Golinski, right, hugs her wife Amy Cunninghis as they pose for a photograph outside of a federal court building in San Francisco, Friday, Dec. 17, 2010. The Obama administration has told government agencies that the court decision allowing health benefits for Golinski’s spouse applies to no one else. (Jeff Chiu/AP)
Joe Davidson
Columnist May 3, 2012

The Obama administration has told government agencies that a court decision allowing health benefits for the same-sex spouse of a federal employee applies to no one else.

The directive from the Office of Personnel Management is not surprising. After a federal district court ruling in February, OPM told Blue Cross Blue Shield to provide benefits to the wife of Karen Golinski, a court employee in California. But the OPM letter also said the decision “has no effect on enrollments requested by other same-sex spouses.”

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Instructions issued by OPM on Wednesday make that policy explicit for federal human resource officials.

“The ruling in the Golinski case does not apply to anyone other than Ms. Golinski. OPM has been directed by the Department of Justice to continue applying the Defense of Marriage Act [DOMA] to all other situations,” said the OPM directive.

“Therefore, if you receive a request to enroll a same-sex spouse, you are still precluded by DOMA from processing the enrollment request or sending it to the FEHB [Federal Employees Health Benefits] plan.”

The administration is in the strange position of enforcing DOMA, a law President Obama would like repealed and a law the Justice Department no longer defends in court. DOMA defines marriage for federal purposes as a union only between a man and a woman.

An OPM official said the agency had no discretion in determining the court decision was limited to Golinski.

Jennifer C. Pizer, a former lawyer for Golinski, disagreed on the issue of discretion but said it is not surprising for the government “to say a district court decision does not have nationwide effect.” Pizer is legal director of the Williams Institute on Sexual Orientation Law and Public Policy at the UCLA School of Law.

For the Human Rights Campaign, an advocacy organization for lesbian, gay, bisexual and transgender rights, “this case is yet another reminder of how denying federal recognition to some marriages harms families,” said Michael Cole-Schwartz, the group’s communications director. “As legal challenges to DOMA work their way through the courts, we look forward to a definitive determination that laws like this are unconstitutional.”

While the government continues to deny full human rights to all its employees in one area, in another arena the Equal Employment Opportunity Commission recently ruled that discrimination against transgender people violates the law.

That case involves Mia Macy, a former police detective in Phoenix. In 2010, Macy, as a man, applied for a position with a Bureau of Alcohol, Tobacco, Firearms and Explosives laboratory in Walnut Creek, Calif. Macy met with its director, who said the job was a contractor position that would be filled through an outside firm.

“As a veteran and a cop, I’ve spent my career working to uphold and enforce the law, and it seemed incredibly unfair when I was told that the discrimination laws that protect everyone else don’t apply to transgender people,” Macy said. “This decision reaffirms that every American has the same right to be treated fairly.”

According to Macy’s complaint, as cited in the EEOC decision, the lab’s director, in a subsequent meeting, “reasserted that the job was [Macy’s] pending completion of the background check.” In March 2011, Macy said she informed the outside firm of her “process of transitioning from male to female” and requested the firm inform the lab’s director.

The next month, Macy was told that “due to federal budget reductions, the position at Walnut Creek was no longer available,” according to the EEOC document. Macy “believes she was incorrectly informed that the position had been cut because the Agency did not want to hire her because she is transgender.”

The ATF said it “cannot comment on personnel matters or pending litigation.”

Ilona Turner, legal director of the Transgender Law Center in San Francisco, said that “this is a game-changing decision, and it will make a tremendous difference for transgender people, who still face unacceptably high rates of discrimination and unemployment.”

The Human Rights Campaign applauded the EEOC decision, saying “the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on gender identity. While a growing number of federal courts have reached the same conclusion in recent years, this is the first time the EEOC has issued an opinion on this issue.”

Pizer agreed, saying the decision is “very significant because it provides a clear national rule that applies to all EEOC staff and other agency staff charged with handling and receiving discrimination complaints.”

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson. Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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