News and Legislation

Issues at the Federal Level

Domestic Partnership Benefits

While the Supreme Court's decision striking down Section 3 of the Defense of Marriage Act and guidance from the Office of Personnel Management have made clear that federal workers' same-sex spouses are now eligible for benefits, not all federal employees cannot access marriage. Thus, these federal employees continue to be denied critical health, retirement and other benefits to their families. The Domestic Partnership Benefits and Obligations Act (DPBO) would provide the same family benefits to gay and lesbian federal civilian employees with domestic partners.

Domestic Partnership Benefits and Obligations Act H.R. 3135; S. 1529 reintroduced in 113th Congress, 2013

Early Treatment for HIV

Currently, childless adults living with HIV generally only qualify for Medicaid coverage once they become eligible for Supplemental Security Income (SSI). An individual is not eligible for SSI until they become disabled. A person with asymptomatic HIV infection is not eligible for Medicaid until he or she has progressed to full-blown AIDS. Without access to Medicaid, many low-income, HIV-positive individuals lack the ability to receive medical care that would help to slow the progression of the disease and related infections. Early Treatment for HIV Act would permit state Medicaid programs to provide HIV treatment to individuals before they develop AIDS.

Early Treatment for HIV Act introduced in 112th Congress, 2012; a three-year early treatment for HIV program was part of a House passed health reform bill, however, it was not included in the final reform legislation.

Employment Non-Discrimination

There is no federal law that consistently protects LGBTQ individuals from employment discrimination; there are not state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 33 states that do so based on gender identity. As a result, LGBTQ people face serious discrimination in employment that may include being fired, denied promotion, and being harassed on the job. Employment Non-Discrimination Act aims for fairness in the workplace to be recognized as a fundamental right protected under federal law. Currently federal law that provides basic legal protection against employer discrimination on the basis of race, gender, religion, national origin or disability will be extended to include sexual orientation, gender identity and gender expression.

Employment Non-Discrimination Act H.R. 1755; S. 815 Introduced in 113th Congress, 2013; Senate passed S. 815

Equal Access to COBRA

Even if an employer sponsors a plan that allows an employee to elect coverage for his or her same-sex partner or spouse, there is not requirement that Consolidated Omnibus Budget Reconciliation Act (COBRA) be made to be available for the employee's same-sex partner or spouse should they leave that employment. As a result, when any individual is rightly dependent on continuation healthy coverage to protect the health of their families, gay, lesbian, bisexual and transgender people and their loved ones doe not have equal access to this important safety net. The Equal Access to COBRA Act mandates that employees, their spouses and dependent children be allowed to continue participation in their employer-sponsored health coverage including same-sex partners and spouses.

Equal Access to COBRA Act expected to be reintroduced

Every Child Deserves a Family

Several states deny lesbian, gay, bisexual and transgender individuals or same-sex couples from serving as adoptive or foster parents. By denying LGBTQ families the ability to foster and adopt children, children are denied the right to safe, happy, and health permanent homes. Every Child Deserves a Family Act would prohibit any public child welfare agency receiving federal financial assistance should they discriminate against any potential foster or adoptive family on the basis of actual or perceived sexual orientation, gender identity or marital status.

Every Child Deserves a Family Act H.R. 2028; S. 1069 introduced in 113th Congress, 2013

Family and Medical Leave

The Supreme Court's decision in Windsor v. United States in June 2013, ruled that lawfully-married same-sex spouses are recognized under the Family and Medical Leave Act (FMLA). FMLA grants legally married spouses up to 12 weeks of unpaid leave from work to care for a seriously ill spouse, parent or child. The problem is that there still are employees who cannot access marriage due to discriminatory state marriage laws and thus, continue to be denied access to this critical benefit and the ability to be with their loved ones during times of medical need. The Family and Medical Leave Inclusion Act would expand FMLA protection to an employee for a same-sex domestic partner who has a serious health condition. It would also permit employees to take leave to care for a child of a domestic partner, as well as a parent-in-law, adult child, sibling or grandparent.

Family and Medical Leave Inclusion Act H.R. 1751; S. 846 introduced in 113th Congress, 2013

Freedom from Discrimination in Credit

Securing credit is critical to pursuing such things as buying a home, going to college, buying a car, or starting a small business. Ones sexual orientation or gender identity has absolutely nothing to do with ones credit worthiness yet LGBTQ people still find themselves being denied a mortgage, credit card, student loan or other type of lending simply because of who they are. There are not federal laws that consistently protect LGBTQ people from credit discrimination. The Freedom from Discrimination Act would amend the Equal Credit Opportunity Act to prohibit discrimination in the provision of credit based on sexual orientation or gender identity.

Freedom from Discrimination in Credit Act H.R. 2364; S. 1159 introduced in 113th Congress, 2013

HIV Organ Policy Equity

HIV-positive individuals are living longer, and like other aging individuals they develop medical conditions that require organ transplants. However, the number of individuals that require organ transplants far exceeds the availability of healthy organs. Permitting organs from deceased HIV-positive donors to be used for transplant to HIV-positive recipients has the potential to save thousands of HIV-infected patients with liver and kidney failure each year. However, federal laws on organ transplants prohibit such organ donations. The HIV Organ Policy Equity Act would permit donated, HIV-positive organs to be used for transplantation in HIV-positive patients.

HIV Organ Policy Equity Act H.R. 698; S. 330 introduced 113th Congress, 2014; Senate passed S. 330; House passed H.R. 698

Jury Non-Discrimination

Federal law prohibits discrimination in service on a federal jury based on race, color, religion, sex, national origin and economic status. However, neither the Court nor federal law prohibits discrimination in jury service based on sexual orientation or gender identity. The Juror Non-Discrimination Act/Jury ACCESS Act seeks to prohibit attorneys from seeking to dismiss potential federal jurors based on their sexual orientation or gender identity.

Jury Non-Discrimination Act/Jury ACCESS Act H.R. 312; S. 38 reintroduced 113th Congress, 2013; Senate Appropriations Committee approved Jury ACCESS Act as part of the fiscal 2014 financial services appropriations bill

Military Spouses Equal Treatment

Regardless of the repeal of "Don't Ask, Don't Tell," and the Supreme Court striking down the Defense of Marriage Act in Windsor v. United States, laws governing the Veterans Administration still prohibit same-sex veteran spouses from having access to important benefits which are available to other veteran families. The Military Spouses Equal Treatment Act would provide the same family benefits to lawfully-married lesbian and gay service members and veterans as are already provided to service members and veterans with different-sex spouses, regardless of where they live.

Military Spouses Equal Treatment Act H.R. 683; S. 373

Real Education for Healthy Youth and Personal Responsibility

Abstinence-only-until-marriage sex education programs exclude and event denigrate LGBTQ students. These programs are prohibited by law from discussing contraceptive use and exclude by design LGBTQ youth because marriage is unavailable to LGBTQ individuals in most states. The Real Education for Healthy Youth Act would provide grants for comprehensive sex education to public or private entities that focuses on adolescent health and education or have experience with training sex educators. Funding would also be provided for teacher training on sex education. The bill would require, rather than merely encourage, inclusiveness of LGBTQ youth in sex education. It would also prohibit federal funding of programs that are insensitive and unresponsive to the needs of LGBTQ youth. In addition, Repealing Ineffective and Incomplete Abstinence-Only Program Funding Act would strike Title V, Section 510 of the Social Security Act from the statue and transfer funding to the Personal Responsibility Education Program state-grant program, which would provide information on both abstinence and contraception for the prevention of pregnancy and sexually transmitted diseases. This act would get rid of the abstinence-only-programs once and for all.

Real Education for Healthy Youth H.R. 725; S. 372 reintroduced 113th Congress, 2013

Repealing Ineffective and Incomplete Abstinence-Only Program Funding Act introduced 112th Congress, 2011; Reintroduced 113th Congress, 2013

Reconnecting Youth to Prevent Homelessness

Not only is youth homelessness a national crisis but gay and transgender youth are over-represented among homeless youth. Consequences for homeless youth range from issues in mental and physical health, sexual abuse and exploitation, chemical and alcohol dependency, educational attainment, to social stigma, discrimination and family rejection. Little support exists at the federal level to provide support for programs that improve family relationship and reduce homelessness among LGBTQ youth. The Reconnecting Youth to Prevent Homelessness Act would require the Secretary of Health and Human Services to establish such programs.

Reconnecting Youth to Prevent Homelessness Act introduced 112th Congress, 2011; expecting to be reintroduced

Respect for Marriage

The Defense of Marriage Act discriminated in two main ways: (1) Section 2 of DOMA allows states to refuse to recognize valid civil marriages of same-sex couples, and (2) Section 3 of DOMA put all same-sex couples, regardless of their martial status, out of all federal laws, applicable to all other married people, thus, denying them federal benefits and protections. Fortunately, in Windsor v. United States, section 3 was found unconstitutional; however, section 2 still remains law. The Respect for Marriage Act aims to repeal DOMA in its entirety. The act would ensure that every married couple has the certainty of federal benefits and protections. If a married couple moves from state to state, their marriage remains valid.

Respect for Marriage Act H.R. 2523; S. 1236; Introduced 113th Congress, 2013

Safe Schools and the Right to Education

Bullying in the forms of verbal harassment, exclusion and physical attack on LGBTQ students as well as students perceived to be LGBTQ is widespread. LGBTQ students that experience bullying in schools are more likely to have high rates of absenteeism, dropout, adverse health consequences and academic underachievement. The Safe Schools Improvement Act would amend the Elementary and Secondary Education Act (ESEA) to require school districts in states that receive ESEA funding to adopt codes of conduct specifically prohibiting bullying and harassment, including on the basis of race, color, national origin, sex, disability, sexual orientation, gender identity and religion. In addition, the Student Non-Discrimination Act would prohibit schools from discriminating against any student on basis of actual or perceived sexual orientation or gender identity. The bill is modeled after Titled IX that would further allow an aggrieved individual a judicial process and protection from retaliation for lodging a complaint of discrimination.

Safe Schools Improvement Act H.R. 119: S.403; Introduced 113th Congress, 2013; provisions were included in the Strengthening America's Schools Act (S. 1094)

Student Non-Discrimination Act H.R. 1652; S. 1088; Introduced 113th Congress, 2013

Right to Higher Education

Not unlike primary and secondary education, college LGBTQ students also face forms of bullying such as verbal harassment, exclusion and physical attack. LGBTQ students are nearly twice as likely to experience harassment compared to their heterosexual peers. There is no federal requirement that colleges and university have policies to protect their students from harassment. The Tyler Clementi Higher Education Anti-Harassment Act would require colleges and university that receive federal student aid funding to have an anti-harassment policy based on actual or perceived race, color, national origin, sex, disability, sexual orientation, gender identity or religion. The anti-harassment policy must extend to all student and employees. The policy must also explicitly prohibit cyberbullying behavior.

Tyler Clementi Higher Education Anti-Harassment Act H.R. 482; S. 2164; Introduced 113th Congress, 2014

Issues in Montana

Montana Attorney General Tim Fox attacks gay marriage
Feb 20, 2014 - Montana Attorney General Tim Fox went out of his way last month to cause trouble for gay couples when he signed a legal brief that invoked the specter of legalized polygamy, out-of-wedlock birth and general moral dissolution to drum up opposition to same-sex marriage. ... read more in the Missoula Independent

Missoula and Helena both have anti-discrimination laws covering both sexual orientation and gender identity. However, Montana's hate crimes law does not cover violence based on sexual orientation or gender identity.

In the 2013 State Legislation, Sen. Tom Facey (D-Missoula) proposed Senate Bill 107 that would remove an obsolete state law making gay sex a crime. The Montana Supreme Court unanimously struck down the law as unconstitutional in 1997. The bill was passed in the 2013 session and signed by Gov. Steve Bullock.

Donaldson v Montana – Considering that Montana state law bars same sex marriage, this case does not seek marriage but rather seeks protection of state-recognized domestic partnership. Such protection would guarantee equal protection and privacy to same-sex couples of the rights and benefits that accrue to married different-sex couples. Unfortunately, the Montana Supreme Court in 2012 upheld the district court's decision granting the state's motion to dismiss but remanded the action to the district court to allow the plaintiffs a chance to amend their complaint. A majority of the Montana Supreme court ruled that "the plaintiffs chose to pursue an overly board request for a declaratory judgment and injunctive relief, without developing a factual record in the district court and without identifying a specific statute or statutes that impose the discrimination they allege."

In the 2005 case, Kulstad v Maniaci, the Montana Supreme court ruled that he non-biological parent in a same-sex relationship can be found to have a "parental interest in the minor children."

In the 2004 case Snetsinger v Montana University System, the Montana Supreme Court ruled that state university system policy denying insurance coverage to same-sex domestic partners of employees violated the state's constitution's equal protection requirements. Thus, the state of Montana has provided insurance benefits to same-sex partners of state and university employees since 2005.

Voters in Montana approved a constitutional amendment banning same sex marriage in 2004.