Federal Court Rules That Widow Is Entitled to Survivor Benefits From Deceased Wife’s Employer Plan

July 29, 2013

(Philadelphia, July 29, 2013)—Today, Judge C. Darnell Jones II of the United States District Court for the Eastern District of Pennsylvania ordered payment of death benefits to Jennifer Tobits, the widow of Sarah Ellyn Farley, under a profit-sharing plan administered by Farley’s employer, the law firm Cozen O’Conner P.C. The court held that because the federal Defense of Marriage Act (DOMA) was recently struck down as unconstitutional by the United States Supreme Court, federally-regulated retirement and benefit plans must recognize the legal marriages of same-sex couples for purposes of spousal benefits such as those due to Tobits.

The court’s decision relied on the Supreme Court’s June 26, 2013, decision in United States v. Windsor, which struck down the portion of DOMA that prohibited federal laws from recognizing the legal marriages of same-sex couples. Referring to the DOMA decision, Judge Jones said: “Following the Court’s ruling, the term ‘Spouse’ is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same-sex spouses in ‘otherwise valid marriages.’”

Judge Jones further ruled that federal laws “establish a floor for privately sponsored employee benefit plans with respect to spousal benefits. … Today’s holding makes clear … that Windsor leveled the floor.”

“I am overjoyed that the court has said my marriage to Ellyn deserves the same respect as everyone else’s,” said Tobits. “Nothing can ever replace Ellyn, but it’s a great tribute to her that the courts have rejected these challenges to our marriage and recognized our commitment to each other and the life we built together.”

The couple married in Toronto in 2006 and lived in Chicago. Two weeks after their wedding, Farley was diagnosed with a rare and aggressive form of cancer. The couple fought the disease together for four years until September 2010, when Farley passed away. She was 37.

Shortly after her death, Farley’s parents told her employer, Cozen O’Connor, that they should receive their daughter’s death benefits under the firm’s profit-sharing plan. Tobits also requested that she receive the benefits because she was the surviving spouse. In January 2011, Cozen O’Connor filed an action in the federal district court for the Eastern District of Pennsylvania to determine whether Tobits or Farley’s parents should receive the benefits.

Cozen O’Connor argued in the lawsuit that DOMA prevented the firm from recognizing Farley’s marriage and treating Tobits as a surviving spouse. Farley’s parents also claimed that the Cozen O’Connor profit sharing plan was prohibited from recognizing Tobits as a surviving spouse. Today, the court rejected both of those arguments and ruled that federal law requires the plan to recognize Tobits as the surviving spouse.

National Center for Lesbian Rights Legal Director Shannon Minter, who is representing Tobits, said: “Today’s decision is not only a victory for Jennifer and Ellyn, it is a victory for every married same-sex couple in the country. No longer can employers hide behind DOMA to deny equal benefits to some employees solely because their spouse is a person of the same sex.”

Attorney Teresa Renaker, who also represents Tobits, added: “This decision makes clear that federal pension law protects same-sex spouses just as it does opposite-sex spouses. Under the rationale of this decision, employees can be confident that their hard-earned retirement benefits will be there for their spouses. Protecting the retirement security of spouses is an important part of ensuring that employees get equal benefits from their retirement plans.”

NCLR and co-counsel Benjamin L. Jerner and Tiffany Palmer of Jerner & Palmer, P.C. and Teresa Renaker and Nina Wasow of Lewis, Feinberg, Lee, Renaker and Jackson, represent Tobits in the case.

Read the decision.

Media Contact:

NCLR Communications Director Erik Olvera | Office:415.365.1324 | EOlvera@NCLRights.org

 


Federal Government Resolves Complaint Filed by CA Transgender Student

July 24, 2013

(San Francisco, CA, July 24, 2013)—Today, the U.S. Department of Education’s Office of Civil Rights and U.S. Department of Justice’s Civil Rights Division announced a resolution to a complaint filed by the National Center for Lesbian Rights (NCLR) on behalf of a transgender student in California’s Arcadia Unified School District. The resolution requires the school district to treat the student as male in all respects and keep his transgender status private. Furthermore, the school district agreed to revise its policies to ensure that all students who do not conform to sex stereotypes, including transgender students, have equal access and opportunity to participate in all of the district’s activities and programs. Those policy changes will be complemented by district-wide training for personnel and students. The implementation of this agreement will be overseen by a qualified expert agreed upon by the district and federal government.

The student and his family—who asked that their names not be made public–filed a complaint with OCR and DOJ in October 2011 when the school district required him to sleep in a cabin by himself instead of allowing him to room with his male peers on an overnight field trip. Not wanting to miss out on this important educational opportunity, he attended the field trip, but could not escape the feeling that he was being “quarantined” for no legitimate reason.

In addition to preventing him from fully participating in the overnight field trip, the school district excluded the student from the boys’ restroom and locker room, insisting that he use the nurse’s office. That arrangement resulted in the student being ridiculed by peers and limited his ability to participate in afterschool activities because the nurse’s restroom was locked during those times.

The student and his family are represented by the NCLR.

“I am glad that my school district has agreed to put in place the protections that I, and other transgender students, need to feel safe and welcome in school,” said the student. “Knowing that I have the school district’s suppport, I can focus on learning and being a typical high school student, like my friends.”

Said NCLR Staff Attorney Asaf Orr: “We commend the federal government for taking this necessary step to ensure that schools are safe and supportive environments where all students can thrive, including transgender students. Federal law obligates school districts to affirm and respect a transgender student’s gender identity in all of their programs, activities, and facilities. Treating transgender students based on their assigned sex at birth is psychologically harmful and interferes with their healthy social development. Hopefully, school districts will take this opportunity to proactively address the needs of transgender youth through district-wide policies and training.”

Read the resolution letter.

Read the agreement.

Read the complaint.

Media Contact:

NCLR Communications Director Erik Olvera | Office:415.365.1324 | EOlvera@NCLRights.org


The Employment Nondiscrimination Act (ENDA): It’s Time to Protect Workers from Sexual Orientation and Gender Identity Discrimination

July 10, 2013

By Ashland Johnson, Esq.
NCLR Policy Counsel

The envelope came early in the morning, but it wasn’t until late afternoon that I had the energy to open it. I had been in the intensive care unit for three days with a potentially fatal condition. When I saw the envelope from my employers, a university in Georgia, I automatically assumed it was the standard “get well” card. But instead of offering good wishes and prayers, this letter informed me that I was being fired from the job I’d held for over a year.

While I was shocked by the timing, ever since I had refused to sign a letter of “voluntary” resignation after my supervisor found out that I’m a lesbian, I had suspected and feared this would happen. After repeatedly being locked out of my office, left out of department meetings, and ignored by administrative officials, I was fired without any consideration of my value as an employee or my rights as an individual.

For over a month before my termination, I researched my options, tried to file a complaint based on the university’s nondiscrimination policy, and compiled evidence to support my case against my supervisor. I also requested meetings with human resources and wrote countless letters to school officials. Despite my efforts, I was simply redirected and ignored.

Since the university was no help, I decided to research my legal rights. I was surprised to discover that I essentially had no legal protections from this type of discrimination. Georgia had no state law protecting workers against discrimination based on their sexual orientation or gender identity.  Further, because the university had adopted its nondiscrimination policy voluntarily, it was not legally obligated to comply with it. The city I where I worked had a local nondiscrimination law, but the commission tasked with enforcing the local code was underfunded, under-resourced, and had little ability to create and enforce penalties. In short, I was shocked to discover that I had no viable legal options: I had been fired for being a lesbian, and the law provided no real protection whatsoever.

Six years later, nothing has changed. Georgia still has no state law protecting LGBT workers, and, shamefully, specific federal protections against this type of discrimination still do not exist. But today, the Senate Committee on Health, Education, Labor and Pensions (HELP)  approved a bill that could change this, and that is now on its way to the Senate for a vote. The Employment Nondiscrimination Act (ENDA) would federally prohibit workplace discrimination on the basis of a person’s actual or perceived sexual orientation and gender identity or expression. This law is much needed and long overdue. Recent studies show that LGBT workers continue to face high rates of sexual orientation and gender identity discrimination. Today, in 29 states LGBT people can be fired because they’re lesbian, gay or bisexual; in 34 states, people can be fired just because they’re transgender. A June 2012 report by the Williams Institute shows that 12 percent of the respondents have lost their job because of their sexual orientation. The incidence of discrimination faced by transgender workers is even higher. In a groundbreaking study released in 2011  by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, 90 percent of respondents reported having experienced harassment or mistreatment at work and 47 percent reported having been discriminated against in hiring, promotion, or job retention because of their gender identity.  Discrimination against LGBT workers is irrational, debilitating, and unfair.  It devastates LGBT individuals and their families, jeopardizes our economic security, and undermines LGBT equality.

LGBT people and their families need ENDA now more than ever to ensure that all employees are free from unfair discrimination at work.  Everyone deserves the opportunity to work and thrive in any profession they choose, regardless of their sexual orientation or gender identity. The passage of an inclusive ENDA will help make this a reality.

Media Contact:

NCLR Communications Director Erik Olvera | Office:415.365.1324 | EOlvera@NCLRights.org

 


Agreement Reached in Lawsuit Against Indianapolis Public Schools For Failing to Protect Gay Student

July 10, 2013

 

(Indianapolis, IN, July 10, 2013)—Today, the National Center for Lesbian Rights (NCLR), Kirkland & Ellis LLP, and Waples & Hanger announced an agreement resolving a lawsuit against the Indianapolis Public Schools (IPS) filed by Dynasty Young, a former student who sued the district after officials failed to address relentless harassment he experienced at school because he is gay and does not conform to gender stereotypes.

After moving to Indianapolis and enrolling at Arsenal Tech for the 2011-2012 school year, Dynasty endured eight months of harassment and bullying by students. He and his mother, Chelisa Grimes, repeatedly turned to school officials for help. Instead of taking effective measures to address the bullying and harassment, school officials blamed Dynasty for being “too flamboyant.” Afraid for her son’s safety, Grimes made the difficult decision to give Dynasty a “self-protection flashlight,” a small device that emits light, a loud noise and an electric charge, to carry with him while at school.

On April 16, 2012, six students surrounded Dynasty to attack him. Afraid, Dynasty pulled the device out of his bag, held it in the air, and activated it, causing the aggressors to scatter without assaulting him. A district employee witnessed the incident, but instead of trying to locate the students who threatened to attack Dynasty, school officials suspended and later expelled Dynasty for trying to protect himself. Rather than return to IPS schools, Dynasty enrolled at Indianapolis Metropolitan High School, a charter school, and filed a lawsuit against IPS challenging the expulsion and school administrators’ failure to address the harassment he experienced. Dynasty graduated from Metropolitan on June 28, 2013.

As part of the agreed judgment filed by the parties in the case, IPS will expunge the expulsion from Dynasty’s school records. Dynasty will also receive $65,000 as compensation for his experience at Arsenal Tech, which he intends to use for his education. The agreed judgment must be approved by the U.S. District Court in Indianapolis.

While the lawsuit was pending, the Indiana Legislature enacted new statewide anti-bullying legislation. The law requires schools across the state to create explicit anti-bullying plans, collect accurate data on incidents of bullying, and provide regular training for school personnel and students. With the case behind him, Dynasty intends to shift his energy and focus into assisting school districts throughout the state to effectively comply with and implement this critical, life-saving law.

Said Dynasty: “I am glad that we were able to resolve this case and that IPS was willing to take the steps needed to help me get my life back on track. Things are starting to fall back into place for me. I am really looking forward to working with school districts to meet their obligations under Indiana’s new anti-bullying law and being a resource for students who have experienced bullying.”

Added NCLR Legal Director Shannon Minter: “This case highlights how important it is for schools to protect students from harassment and bullying. The severe bullying that Dynasty endured at Arsenal Tech caused both psychological and educational harms that were compounded by the school’s insistence on blaming Dynasty for being ‘too flamboyant.’ Dynasty’s courage in bringing this lawsuit will encourage school districts to take proactive steps to stop bullying and harassment and ensure that all students are safe and have an equal chance to succeed. ”

Brent Ray, lead attorney on the case for Kirkland & Ellis LLP added: “This settlement marks the end of two very difficult years for Dynasty. He has persevered and it is great to see his positive attitude and warm spirit again. We know that Dynasty will continue to raise awareness about the serious problem of bullying in schools and look forward to seeing the great things he accomplishes.”

Media Contact:

NCLR Communications Director Erik Olvera | Office:415.365.1324 | EOlvera@NCLRights.org

 


Same-Sex Couples Ask New Mexico Supreme Court to Protect Their Right to Marry

July 3, 2013

(Albuquerque, NM, July 3, 2013)—Late Tuesday, the American Civil Liberties Union (ACLU) of New Mexico, ACLU national, the National Center for Lesbian Rights (NCLR), Albuquerque law firm Sutin, Thayer & Brown PC, and Albuquerque attorneys Maureen Sanders, Kate Girard, and Lynn Perls filed a writ of mandamus with the New Mexico State Supreme Court seeking a ruling on the issue of whether same-sex couples can marry in the State of New Mexico. The writ also asks the court to clarify that New Mexico respects the marriages of same-sex New Mexico couples who married in another state, which is necessary to ensure that those couples qualify for all of the federal programs that are now available to married same-sex couples as a result of the United States Supreme Court decision last week invalidating the Defense of Marriage Act (DOMA).

“The United States Supreme Court’s decision to overturn DOMA has increased our sense of urgency to clarify the ability of same-sex couples to marry in New Mexico,” said ACLU-NM Executive Director Peter Simonson. “With all barriers to federal recognition removed, our State cannot stand by as thousands of same-sex couples, many of whom were married out of state, continue to be denied those protections.”

There are more than 1,100 places in federal laws and programs where being married makes a difference, including eligibility for family medical leave, social security survivor’s benefits, and access to health care for a spouse. With DOMA now overturned, same-sex couples could immediately become eligible for these federal benefits and protections, as well as all of the protections given to spouses under state law, if the New Mexico Supreme Court rules that New Mexico law permits same-sex couples to marry and also requires that the state respect the marriage of same-sex couples who have married out-of-state.

“Every day that goes by, same-sex couples and their families are being harmed by not being able to protect their families through marriage,” said NCLR Executive Director Kate Kendell. “The fall of DOMA has greatly upped the stakes for loving, committed same-sex couples in New Mexico. Now more than ever, we urgently need guidance from the courts on whether these couples can access the protections and societal recognition of marriage.”

A writ of mandamus is a special legal action that permits the New Mexico Supreme Court to resolve an issue without waiting for the lower courts to rule. The New Mexico Supreme Court is not legally required to accept writ petitions, but it may do so when presented with an issue of great public importance.

The ACLU of New Mexico, ACLU national, NCLR, Sutin Law Firm, and Albuquerque attorneys Maureen Sanders, Kate Girard, and Lynn Perls filed an earlier lawsuit seeking the freedom to marry on behalf of same-sex couples in the Second Judicial District Court on March 21, 2013. If the New Mexico Supreme Court declines to hear the writ petitions, that lawsuit, Griego v. Oliver, will proceed and will determine whether same-sex couples have a constitutionally protected right to marry in the state.

Media Contact:

NCLR Communications Director Erik Olvera | Office:415.365.1324 | EOlvera@NCLRights.org

ACLU-NM Media Contact Daniel Williams | Office: 505.266.5915 x1016 |
DWilliams@ACLU-NM.org


CA Senate Passes Bill Supporting Transgender Student Success

July 3, 2013

(Sacramento, CA, July 3, 2013)— Today, the California State Senate passed the School Success and Opportunity Act (Assembly Bill 1266), sending the bill that ensures transgender students have the opportunity to succeed in school to Governor Jerry Brown for signature. Authored by Assemblymember Tom Ammiano, the bill passed the Senate with a 21-9 (unofficial). The bill passed the California State Assembly last month with  46-25 vote.

AB 1266 will ensure that California public schools understand their responsibility for the success and well-being of all students, including transgender students, and will allow transgender students to fully participate in all school activities, sports teams, programs, and facilities in accordance with their gender identity.

Co-authored by Senators Mark Leno and Ricardo Lara and Assemblymember Toni Atkins, the bill is backed by a coalition of leading organizations, including Transgender Law Center, Gay-Straight Alliance Network, Gender Spectrum, Equality California, ACLU of California, National Center for Lesbian Rights, statewide teacher and parent organizations, and dozens of other organizations.

“I’m so happy the state is taking action to make sure I have the same opportunity as everyone else to go to school and graduate,” said Ashton Lee, a 16-year-old transgender boy from Manteca who came to Sacramento with his mother to testify before the Senate Education Committee last week. “I just want to be treated the same as all the other boys, but my school forces me to take P.E. in a class of all girls and live as someone I’m not. I can’t learn and succeed when every day in that class leaves me feeling isolat-ed and alone.”

In 2005, the Los Angeles Unified School District, the nation’s second largest school district in the country with more than 670,000 students, successfully implemented a policy nearly identical to AB 1266 to ensure that no student is left out.

“Families matter in LAUSD. We’ve worked closely with students and families to ensure that our policies related to gender identity are successful, welcomed by students, and supported by parents,” said Judy Chiasson, Program Coordinator for Human Relations, Diversity and Equity at the Los Angeles Unified School District. “In addition to longstanding policies banning bullying, harassment, and discrimination, LAUSD has had specific policies banning discrimination based on gender identity for nearly a decade. We have firsthand experience recognizing and valuing the diversity of school communities, which ultimately enhances and enriches the lives of all our students.”

California law already prohibits discrimination in education, but transgender students are often still unfairly excluded from physical education, athletic teams, and other school activities and facilities be-cause of who they are. This exclusion negatively impacts students’ ability to succeed in school and grad-uate with their class. For example, physical education classes help students develop healthy fitness hab-its and teach values like teamwork and fair competition – and P.E. credits are required, so students can-not graduate without them.

Under AB 1266, California’s public schools would be required to respect a transgender student’s identity in all school programs, activities, and facilities. The bill will provide guidance to district and school leaders about how to meet their obligations to protect the safety and well being of all students, including those who are transgender.

“This law is necessary to ensure that California schools do not discriminate against transgender stu-dents,” said National Center for Lesbian Rights Legal Director Shannon Minter. “California is falling be-hind other states on this important issue, and this law is urgently needed to ensure that all California stu-dents have an equal chance to thrive and succeed.”

Media Contacts:

Erik Olvera, National Center for Lesbian Rights, 415.365.1324, EOlvera@NCLRights.org
Jesse Melgar, EQCA, 323.848.9801, Jesse@EQCA.org
Rebecca Farmer, ACLU of California, 415.621.2493, x374, RFarmer@ACLUNC.org
Jill Marcellus, GSA Network, 516.313.9659, Jill@GSANetwork.org
Mark Snyder, Transgender Law Center, 415.865.0176, x310, Mark@TransgenderLawCenter.org


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