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June 17, 2009

The federal employee benefits memo as anti-climax

The President's Memorandum for the Heads of Executive Departments and Agencies is out. Criticizing it is, to be honest, too easy - like shooting fish in a barrel. It is so obviously a thrown-together document - it basically directs the agencies to identify benefits that can be extended to domestic partners without congressional action. The only Cabinet-level department already to have taken any initiative whatever appears to be the State Department, which announced its reforms several weeks ago.

In his remarks, the President also restated his support for legislation granting benefits to partners of federal employees that cannot be achieved administratively, and for repeal of DoMA.

A few observations on the hype and the real possibilities:

* Although the President claimed in his oral remarks (see below) that it is the product of a "long and thorough review," the memorandum itself reads much more like a directive to senior management to assess what can be done quickly. It really is the kind of memorandum that should go out in the first weeks of an administration, and easily could have, if anyone had been on top of these issues during the transition. This same memorandum could have been drafted in December and issued by the end of January. And if it had been, the lgbt community would have been thrilled.

It's clear from the specific examples that the White House identified in supporting materials that the administration has done some research, although at least one benefit they claim credit for is old news. But the absence of specifics from the memorandum itself strongly suggests that this project was interrupted to create an event before all the work was done. OPM is directed to effectuate the new benefits it has identified, but all the other departments (except for State) seem to be getting the message to start looking now.

The main problem, of course, is that there are statutes that curb who is eligible for certain benefits. A federal statute explicitly limits enrollment for health insurance and pension benefits to an employee and members of his/her family, 5 USC 8905(a); and another section defines "member of family" to include only a spouse and unmarried dependant children under 22, 5 USC 8901(5). The first of those provisions eliminates the option of creating a new category for domestic partners (which DoMA would not prohibit). And when you combine the latter provision with DoMA' s limitation on "spouse" to different-sex marriages, there's not much space for action.  

* There is also a section of the memorandum that directs OPM to issue guidance within 90 days to insure "compliance with and implementation of" a longstanding federal law that prohibits discrimination against federal employees based on factors "not related to job performance." Who knows where this will lead, but it seems to invite OPM to "guide" federal agencies not to discriminate based on gender identity.

This section of the federal civil service law is the backdoor path used by lgbt advocates in the 1970s, who obtained a "clarification" from the Civil Service Commission that this general standard - not related to job performance - covered discrimination based on sexual orientation.  In the 1990s, President Clinton brought the rule out of the closet by explicitly adding sexual orientation to the Executive Order prohibiting discrimination against federal employees based on race, sex and religion. Adding gender identity to that Executive Order is what President Obama should have done tonight. So maybe this step will get gender identity to where sexual orientation was 30 years ago. Which is to say, it's better than nothing.

* Lastly, I couldn't help but note the stark contrast between the language of the memorandum and that of the non-binding comments of the President when he signed it. (Full text of his remarks is after the jump.) The operative document, to be published in the Federal Register, frames the problem as the federal government's inability to match private sector employee benefits. Its introduction concludes: "Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and brightest employees." How inspiring.

The President's remarks, by contrast, open with a reference to the "the long overdue progress in our nation's pursuit of equality," and he isn't talking about equality with the private sector. No, it's about people being "denied basic rights [because] the people that they love are of the same sex." That's nice.  Too bad more of that kind of equality didn't make it into the only document that matters.

OPM Director John Berry and OPM General Counsel Elaine Kaplan are good people. I wish them the best of luck in moving forward. Reforming the nation's largest employer is incredibly important. And it won't be easy.


Office of the Press Secretary
For Immediate Release                             June 17, 2009


Oval Office

6:04 P.M. EDT

     THE PRESIDENT:  Well, today I'm proud to issue a presidential memorandum that paves the way for long-overdue progress in our nation's pursuit of equality.

     Many of our government's hard-working, dedicated, and patriotic public servants have long been denied basic rights that their colleagues enjoy for one simple reason -- the people that they love are of the same sex.

     Currently, for example, LGBT federal employees can't always use sick leave to care for their domestic partners or their partners' children.  Their partners aren't covered under long-term care insurance.  Partners of American Foreign Service officers abroad aren't treated the same way when it comes to the use of medical facilities or visitation rights in case of an emergency.

     These are just some of the wrongs that we intend to right today.

     In consultation with Secretary of State Clinton, as well as OPM Director John Berry, my administration has completed a long and thorough review to identify a number of areas where we can extend federal benefits to the same-sex partners of Foreign Service and executive branch government employees.

     I'm requesting that Secretary Clinton and Director Berry do so where possible under existing law -- and that the heads of all executive departments and agencies conduct reviews to determine where they may do the same. 

     Hundreds of Fortune 500 companies already offer such benefits not only because it's the right thing to do, but because they recognize that it helps them compete for and retain the best possible talent -- and we need top talent serving their country right now more than ever.

     Now, under current law, we cannot provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples.

     That's why I'm proud to announce my support for the Domestic Partners Benefits and Obligations Act, crucial legislation that will guarantee these rights for all federal employees.

     I want to thank Representative Tammy Baldwin, who is behind me somewhere -- there she is, right there -- for her tireless leadership on this bill and in the broader struggle for equality.  I want to thank Senator Joe Lieberman -- Joe is here -- as well as Susan Collins for championing this bill in the Senate; and Representative Barney Frank for his leadership on this and so many other issues -- in fact, this is his second trip to the White House today.  (Laughter.)

     It's a day that marks a historic step towards the changes we seek, but I think we all have to acknowledge this is only one step.  Among the steps we have not yet taken is to repeal the Defense of Marriage Act.  I believe it's discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it.

     We've got more work to do to ensure that government treats all its citizens equally; to fight injustice and intolerance in all its forms; and to bring about that more perfect union.  I'm committed to these efforts, and I pledge to work tirelessly on behalf of these issues in the months and years to come. 

     Thank you very much everybody, and with that I am going to sign this executive order. 

     (The memorandum is signed.)  (Applause.)


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I find it odd that you would congratulate the "good people" who worked on this while simultaneously alleging that they are participating in a fraud.

I have my doubts about the anti-climax.

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