The U.S. Supreme Court’s June decision striking down a key provision of the Defense of Marriage Act DOMA promises many federal benefits to married gay and lesbian couples. But the landmark ruling does little to ensure a nondiscriminatory workplace for gay, lesbian, bisexual and transgender educators.
Nearly one out of three Americans lives in jurisdictions where same-sex marriage is legal. But many of the married gay and lesbian educators who live in states that are not gay-friendly are unlikely to take full advantage of their newly affirmed rights, including lower federal taxes. That’s because the sad reality in many schools is that an educator can still be fired once word gets out that they’re gay.
The Supreme Court’s ruling in Windsor v. U.S. nixed the most damning part of DOMA—the provision that limited the federal definition of marriage to “only a legal union between one man and one woman.” But there is still no federal law guaranteeing GLBT employees the same kind of workplace protections extended to other vulnerable workers.
In the past, we could count on Congress to ensure workplace protections by passing laws like Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act and the Age Discrimination Act. That’s no longer true— particularly when it comes to GLBT rights and protections.
Today, we put our lobbying energy to best use when we focus on state initiatives. Some progress has already been made. Since the late 1980s, 17 states have passed laws prohibiting discrimination based on sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont and Washington. Washington, D.C., also has such a law. Maryland, New Hampshire, New York and Wisconsin ban discrimination based on sexual orientation only.
Spotty protections are not enough. Consider the vulnerability of a teacher living in rural West Virginia—a state that doesn’t recognize gay marriage and has no job protections for GLBT workers—who crosses the Potomac River to marry her life partner in adjacent Maryland. Back home, she has no job protections in the event that her fundamentalist principal doesn’t like the fact that she is a lesbian and has a same- gender spouse.
Never mind the unfairness of forcing a gay couple to travel out of state to get hitched. Because marriage certificates are a matter of public record, the situation becomes even more complex for gay or lesbian teachers working in a hostile school or district.
But marriage isn’t a prerequisite for job bias against GLBT educators. This year, Bishop Watterson High School in Columbus, Ohio, fired Carla Hale, a 19-year veteran teacher, after a local paper listed her with a same-sex partner in an obituary for Hale’s mother.
Stronger protections are needed on several fronts. Most importantly, state lawmakers must be lobbied to protect GLBT educators and job applicants from all forms of employment discrimination, including those affecting?hiring and termination, promotion and pay. The same
protections must apply to full- and part-time staff, no matter the size of the school or institution where they work. These protections require the undergirding of strong, anti-retaliation provisions designed to protect any staffer who complains about GLBT discrimination.
State laws must also guarantee that GLBT couples and families have access to health coverage and other benefits—like life insurance, disability coverage, retirement benefits and leave—that are extended to traditional married couples.
The Office of Personnel Management (OPM)—the?federal government’s human resources department—has?already provided a model policy. Within days of the?Windsor ruling, OPM announced that legally married, same-sex spouses of federal employees or annuitants would be eligible for benefits coverage, regardless of where the employee or annuitant lives. For benefits purposes, OPM also will treat the children of same-sex marriages—including stepchildren—the same as those of opposite-sex marriages.
Many states have more generous family and medical leave provisions than those that are included in the federal Family and Medical Leave Act. These must also expand to include same-gender spouses and their children, and Rhode Island serves as a model. Beginning in 2014, the state will guarantee paid leave to employees caring for a critically sick or injured family member, including a domestic partner or same-gender spouse. Still, the law has a significant shortcoming: It doesn’t cover public employees.
Building on the progress represented by Windsor, states must be pressured to repeal DOMA-like laws. These include: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. The same efforts must be made in Hawaii, Illinois, Indiana, Pennsylvania, West Virginia and Wyoming where same-sex marriage is banned.
At a minimum, states that refuse to enact their own gay marriage laws should be pressured to recognize marriages performed in other states and to ensure that a party to a civil union has the same benefits and rights as a party to a marriage.
Windsor has opened the door to new protections for GLBT educators. It’s time to open the door even wider, and include protections at the state level.