Second-Class Survivors

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Second-Class Survivors

Newspaper article

By: Andy Humm

Date: November 2001

Source: The Village Voice

About the Author: Andy Humm is a veteran gay journalist based in New York City. He is a former member of the City Commission on Human Rights and served as the Director of Education at the Hetrick-Martin Institute for Lesbian and Gay Youth, starting an AIDS education program. Humm is also currently the co-host and producer of the New York based television show "Gay USA."

INTRODUCTION

The terror attacks of September 11, 2001 left thousands of victims in the rubble of the World Trade Center and Pentagon. In an effort to assist the families of those victims, the federal and state governments along with charity organizations began to offer financial assistance. As part of the September 11th Victim Compensation Fund, representatives of married victims or those with children were eligible to receive at least $500,000 in total compensation—an amount that included contributions from both state and federal funds and life insurance. Representatives of unmarried victims were eligible to receive at least $300,000. Although the federal government deferred to state laws to define the victim's representation, many charity organizations, such as the American Red Cross and United Way, also began to offer assistance to victims' domestic partners.

"Domestic partners" are unmarried cohabiting same-sex and heterosexual couples. Each state defines domestic partnerships differently; some offer a civil union registry. However, the federal government provides certain rights only to spouses and not to domestic partners, including automatic inheritance, child custody, domestic violence protection, insurance and tax considerations, immigration rights, and survivor benefits.

According to the Human Rights Campaign—a national gay, lesbian, bisexual, and transgender political action organization—only five employers offered domestic partner benefits in 1989. This number, as well as public perception, has risen in recent years. An Associated Press poll of 1,012 Americans in 2000 showed that at least half supported domestic partnership benefits that included health insurance, social security benefits, and inheritance. Employers that do offer benefits to domestic partners often require documentation, such as a municipal certificate of domestic partnership, evidence of an established relationship, or cohabitation for six to twelve months. Other than a marriage certificate, none of these criteria is required of married employees.

Between 1997 and 2003, the number of Fortune 500 employers who offer domestic partner benefits quadrupled to 190. Activists believe that this attracts a broader base of employees. Of Fortune magazine's "100 Best Companies to Work For," at least sixty-seven offer benefits to domestic partners. In addition, in April 2000, Vermont became the first state to grant civil unions the same rights as marriages.

Although many states have antidiscrimination laws enacted to protect individuals in the workplace, gay rights activists assert that without domestic partner benefits homosexual employees do not receive equal pay for equal work. For those employees who accept benefits for their domestic partners, the Internal Revenue Service considers company payments for domestic partners taxable income. If the partner is not covered under his or her own workplace insurance, the value of accepting the benefits and paying addi-tional taxes must be compared to purchasing an independent health insurance.

PRIMARY SOURCE

George Cuellar lost the love of his life on September 11—"a nightmare," he says. Had Cuellar been able to marry his partner, he would now be entitled to a wide array of government and private benefits. But because his partner, Luke Dudek, was another man, their 20 years together counts for nothing to the federal government.

Cuellar says the people at the Family Assistance Center have been "wonderful. They treated me with nothing but respect. But when I went for Social Security, they looked at me and said, 'Don't even think about it.'"

No federal program benefits domestic partners. But the 9-11 disaster has changed a lot of things. Whether the new spirit of unity will apply to gay and lesbian survivors depends largely on John Ashcroft. The attorney general will decide, reportedly over the next few weeks, which survivors are entitled to relief under the Airline Stabilization Act. Congress put up $15 billion to sustain the industry and offer settlements—probably $1 million—to each survivor who forgoes a lawsuit against the airlines. As of now, the wording of the resolution leaves the fate of gay and lesbian survivors unclear.

"I let everyone out there interpret the phrase 'families of victims' accordingly," says Justice Department spokesperson Charles Miller. He refused to state explicitly that domestic partners were welcome to apply to the September 11th Victim Compensation Fund.

The late Luke Dudek, who was food and beverage controller for Windows on the World, spent the last week of his life helping Cuellar with their flower shop in Cedar Grove, New Jersey. Now trying to put together the pieces of his life, Cuellar faces a mixed and shifting landscape, especially if he tries to access programs funded by Washington. He will fare better as he navigates the various relief agencies.

For the first time since it was founded in 1881, the American Red Cross is explicitly offering disaster relief to domestic partners left behind. Gay groups like New York's Empire State Pride Agenda immediately lobbied the agency. "The minute it happened, we knew there would be surviving partners," says Matt Foreman, ESPA's executive director.

Gay groups also lobbied Governor George Pataki, who was about to keynote ESPA's annual dinner, to amend his September 11 emergency executive order by redefining a "dependent person" eligible for relief from the Crime Victims Board—up to $600 a week with a cap of $30,000—to include those showing "mutual interdependence." Only a few years ago, the state-run board had fought successfully in court for the right not to treat domestic partners the same as spouses, as city law would require. "We can learn a little bit from September 11," Pataki told the ESPA crowd.

State Senator Tom Duane, a leader of the gay community, has written Pataki asking him to go further and make domestic partners of uniformed workers who were killed eligible for pensions and other benefits. Edgar Rodriguez, a gay cop, asked the governor's counsel about this at the ESPA dinner and was told that Pataki "wanted to work on it."

Things are clearer when it comes to city benefits. Safe Horizon, the new name for the city's Victim Services Agency, offers survivors, including domestic partners, up to $1500 every two weeks, to a maximum of $10,000. A spokesperson for the group said they can even help unrelated roommates who have proof of interdependency.

As the partner of someone who worked in the food, beverage, or hospitality businesses at the twin towers, Cuellar can also apply to the Windows of Hope Family Relief Fund. However, like most charities set up by Trade Center firms, it does not specify coverage for domestic partners.

Voice calls to the scores of funds listed at the World Trade Center Relief Web site found that most—like Cantor Fitzgerald, Carr Futures, and Marsh & McLennan—will cover unmarried partners. But this arrangement isn't mentioned on any of their Web sites. And while domestic partners in New York City have certificates as proof, those who did not or could not register—like the suburban Cuellar—will have to negotiate over the legitimacy of their relationships. "We're setting up guidelines," says Darlene Dwyer of Windows of Hope.

The most sustaining forms of relief are the fed's Social Security and state pensions and worker's compensation, all of which would require new legislation to include domestic partners. Gay lobby groups are not seriously attempting to lobby for this change now. "We don't even have civil rights protections in New York," notes Foreman. Neither Pataki nor state senate leader Joe Bruno's office returned calls asking whether they would support new legislation on gay rights.

However, the House of Representatives did take a small step toward equality when it voted recently to allow the District of Columbia to implement domestic-partner benefits for some employees. Gay activists are buoyed by the vote, but they are not optimistic when it comes to securing benefits nationwide. Right-wing leaders like the Reverend Lou Sheldon of the Traditional Values Coalition have already charged that gays "are taking advantage of this national tragedy to promote their agenda." It seems unlikely that conservatives will stand for a redefinition of the family, despite the plight of survivors like Cuellar.

The Human Rights Campaign is lobbying the administration to include domestic partners. "The fact that the language of the relief bill is open is helpful," says Barney Frank, the House's senior gay member. But expecting Congress to pass gay-inclusive language is "wildly optimistic." His strategy: "I will focus on the attorney general."

Senator John McCain wept as he eulogized his former campaign volunteer Mark Bingham, the gay rugby player who went down with United flight 93 in Pennsylvania, and may have helped bring down the plane before it could hit Washington. "I may very well owe my life to Mark," McCain said. But he did not return calls about whether Bingham's partner would deserve any consideration as a spouse.

New York senators Hillary Clinton and Chuck Schumer support gay partnership rights, especially for September 11 survivors. Schumer wrote to Ashcroft urging compensation for domestic partners. "Preliminary vibes are not as bad as we'd think," the senator told the Voice. But Clinton is concerned about "political blowback" from "the more ideological House GOP leadership."

There was one piece of good news last week: Gerald Ford became the highest-ranking Republican to endorse equal treatment for gay couples. "People are more receptive to the basic human story of gay and lesbian families after 9-11," says Evan Wolfson, a longtime advocate for equal marriage rights. But survivors like Cuellar are still far from being treated equally when they need it most.

SIGNIFICANCE

In the aftermath of September 11th, public perception of domestic partnership survivor benefits for gay and lesbian couples began to shift. In a speech to New York's Empire State Pride Agenda, Governor George Pataki offered to extend crime fund benefits to domestic partners of victims of the attack. In addition, former President Gerald Ford expressed his support for equal treatment of domestic partners within federal tax policies and Social Security benefits.

Businesses have also begun to adopt more domestic partner-friendly policies. In 2002, the District of Columbia finally granted benefits after rejecting the proposal for ten years. In New York City, more than 225 city employers provided domestic partner benefits in 2004, up from the 163 in 2000.