Knowing Your Rights Is the First Step to Being Your Own Advocate For Change

Hana Tauber, Community Engagement Coordinator

In the Public Affairs and Education wing of GLAD we are always so delighted when we can provide information that helps people successfully fight for their rights. Information is power, and it is our job to spread the word in the community about what legal protections exist to protect people no matter what their sexual orientation, HIV status or gender identity might be. As educators and advocates, we are excited when community members take the law under their arm and advocate for themselves.

A week ago we got a call on the InfoLine from a same-sex married couple who were denied spousal health insurance by a Massachusetts public entity. This couple knew that something was wrong.

Our callers made a strong impression on us since they handled the situation with such determination. They remembered all of the names of the people that they spoke to; they were asking clear and directed questions; they had a timeline of events; and they called all ends of the spectrum from the insurance company, to the Massachusetts Attorney General’s office, to GLAD.

We were able to guide them through some steps to challenge the information that they were given. Sometimes simply requesting a denial in writing is enough to cause authorities to take a closer look at their decisions and correct them. Massachusetts authorities realized, a little late, that they cannot deny state, country or municipal employees same-sex spousal health benefits.

When they won health insurance coverage for the spouse, they thanked us by sending a fruit, cracker and cheese basket. This was the first time that we ever received a gift from one of our InfoLine callers, and we were, well, just touched. They wrote to us saying that:

Your team at GLAD talked us through every step of the process to get us to where we needed to be, which was having my employer provide health insurance for my wife in addition to myself. We have never encountered such cooperation and compassion while getting correct information based on the law and our rights as a same-sex married couple with which to combat the inaccurate information being given to me by my employer.

Thank you to this amazing couple, to our volunteers, to our legal team for having our back, and to the community for turning to us for information.

Know Your Rights: Why Can’t I Get My Spouse On My Company’s Health Plan?

Many companies provide health benefits to the spouses of their employees. So, most people assume that if a same-sex couple marries and lives in a place that recognizes the marriage that their spouse will be entitled to the same health benefits that a different-sex spouse is entitled to. Unfortunately, this is not always the case.

The reason is fairly complex, but basically it has to do with whether the company’s health plan is insured (the company pays a premium for each health plan to an insurance company) or the plan is self-insured or self-funded (which means that the company directly pays the health expenses that are incurred under the plan). The only way to tell whether your company’s plan is insured or self-insured is to obtain a copy of the plan or speak to your HR person, because even companies with self-insured plans often hire an insurance company to manage their paperwork.

With insured plans, usually the state’s insurance laws apply to the plan, and so in places that recognize the marriage, the company and health plan are required to treat same-sex spouses the same way they treat different-sex spouses.

Self-insured plans, however, are regulated by a federal agency, ERISA, which sets minimum standards that employers must meet. Because of DOMA, ERISA does not require employers to treat same-sex spouses the same way it does different-sex spouses, and so with self-insured plans employers can legally discriminate against same-sex spouses and not allow them to get on the health plan.

It is important to understand though that ERISA does not PREVENT employers from offering the same benefits to same-sex spouses. If the benefit is denied, it is because the employer is deliberately choosing to discriminate against its same-sex married couples. Also, sometimes even with self-insured plans, the definition of spouse may legally require that same-sex spouses be covered. So if you are denied spousal coverage, call GLAD’s Legal InfoLine. We can arm you with information that may persuade your company to provide coverage.

Even if a same-sex spouse is allowed on the other spouse’s health plan, DOMA steps in with another example of discrimination. Employer benefits to different-sex spouse are tax free, but since the federal government does not recognize the marriages of same-sex couples, any benefit the employer offers to a same-sex spouse gets considered as extra income to the employee (called imputed income) and gets taxed by the federal government. However, in places that recognize the marriage there is no state tax.

If DOMA goes away, both these forms of discrimination would disappear. There is more detailed information about this at www.glad.org. If you have any questions about this blog or any other legal question, contact GLAD’s Legal InfoLine at 800-455-GLAD (4523).