In Support of Bills 970140 (February 1997) and 970181 (March 1997) and in Partial Support of companion Bills 970750 (Fair Practices Act), 970745 (Pensions) and 970749 (Realty Transfer Tax).
Background:
Marriage is a constitutionally protected right reserved for heterosexual couples regardless of their ability or willingness to procreate and regardless of the couple’s ability to cohabitate. Attendant to marriage are a wide range of social, legal, and economic benefits which are denied systematically to gay and to lesbian couples who may not marry and to non-gay heterosexual couples who may be unable to marry for a variety of valid reasons [1].
Marital status continues to drive workplace benefits, where they exist, and account for an estimated 30% or more of an employee’s compensation package. Of the various benefits associated with marriage, health care benefits, a privilege rather than a universal entitlement, are particularly critical [2].
In Philadelphia, married couple households represent less than 40% of all households; in the United States less than 30% of the nation’s 91 million households represent the traditional definition of "family," i.e. two parents living with their children. There are many diverse family formations inclusive of single parents and two-parent families, extended families, foster families, unmarried single adults as well as couples who may or may not live with children. It is clear, absent the recognition of and the extension of benefits to life partners, that an untold number of families will continue to suffer unnecessary economic hardships associated with unequal pay for equal or comparable work.
Over the last decade, compelled by a sense of basic fairness and sound judgment, a growing number of private corporations, universities, and local municipalities now recognize domestic partnership relationships of both gay and non-gay family units, and have reported nominal benefit cost increases [3]. It is time for Philadelphia to act to support Philadelphia’s diverse families. An abbreviated summary of a now 6 year local struggle for the recognition of domestic partnerships is appended to my testimony (Appendix I.A.)
Useful Remembrances:
Braschi v. Stahl Associates (NY): The term family…should not be rigidly restricted to those people who have formalized their relationship by obtaining, for example, a marriage certificate or adoption order. It…should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.
Loving v. Virginia. Virginia Code: All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.
Pennsylvania’s DOMA: Marriage is a union of one man and one woman (paraphrase)
The Legislative Proposals At Hand:
After a review and analysis of the five bills originally under consideration (Appendix 1.B), we strongly prefer the Domestic Partnership Bill 970140 as introduced in February 1997 for reasons of basic fairness, clarity, and the avoidance of gender-based constitutional challenges, a challenge which would be particularly ironic insofar as sexual orientation discrimination against the gay and lesbian community is well documented and remains legal in most states, including Pennsylvania [4].
(See also Appendix II. The Pennsylvania Civil Rights Initiative Statement of Support.)
If the majority of Philadelphia City Council members and the Mayor of Philadelphia remain unwilling to support this approach, it is incumbent upon Council, particularly, to consider the following changes to more recent proposals including the Fair Practices Act Amendments (Bill 970750); the Realty Transfer Tax (Bill 970749); and the Retirement System Ordinance (Bill 970745).
(1) Assure that the language throughout the text of any proposed legislation is gender neutral, or clarify your intention to protect men only. (And then we will indeed have a gender based constitutional challenge!)
(2) If council’s intent is to extend rights and benefits to lesbian and gay life partners and our families as well as to non-gay life partners and their families, please say so.
(3) Explicitly provide for a uniform public registry system to implement relevant ordinances so that partnership affidavits may be filed centrally to establish and to dissolve such partnerships.
(4) To avoid legitimizing gender discrimination, add clarifying language to Bill 970750 (Fair Practices Act amendments) at Sec. 9-1103. Sec. 4c(.1) that says:
….If an employer makes application to the Commission on Human Relations, and the Commission finds that said application is not a subterfuge to evade the purposes of this law and that a job classification has characteristics which would provide a reasonable basis upon which only male or female personnel should be employed, then no employer shall be considered to violate the provisions of this ordinance with regard to that job classification.…..
(5) To promote fairness, amend the Municipal Retirement System bill at Section 112.1 to permit now retired employees to exercise the right to designate any beneficiary they wish – this long delayed right should be made retroactive.
(6) Since Bill 970750 excludes "unfair housing practices," clarify that the now definition of marital status as the status of being single, married, separated, divorced, widowed, or a life partner is applicable to the 1980 Unfair Housing Practices amendments to the Fair Practices Act, or amend the bill to include Unfair Housing Practices.
(7) Consider the importance of your role in effectuating human rights
and basic economic rights, and in encouraging stable and diverse family forms by expanding the reach of Bill 970750 to businesses that contract with the city (aka contract compliance).
Thank you.
Notes:
[1]. It is important to note that the denial of these rights and privileges does not occur in a vacuum but rather is symptomatic of an extraordinary animus towards our people fueled in part by well-funded political conservatives and religious extremists.
[2] Examples of rights and benefits attendant to marriage: Decision making power in relationship to one’s partner; custody and visitation rights; loss of consortium tort benefits; annuities, pension plans, Social security and Medicare; property tax exemptions; inheritance of jointly owned real and personal property; joint tax return filings if desired; as well as supportive workplace policies, e.g. bereavement and funeral leave on the death of one’s spouse or close "blood" relative.
[3] City of Philadelphia Domestic Partnership Proposals. Thomas F. Coleman, Executive Director, Spectrum Institute, May 1997; Sampling of Domestic Partner Benefits, National Gay and Lesbian Task Force (July 1996); and Domestic Partnership: Issues and Legislation: Part One. Lambda Legal Defense and Education Fund Domestic Partnership (1992).
[4] The Study of Discrimination and Violence Against Lesbian and Gay People in the City of Philadelphia and the Commonwealth of Pennsylvania. A 1996 study by the Philadelphia Lesbian and Gay Task Force showing an epidemic level of sexual orientation discrimination in employment, housing, and public accommodations, and of hate-based criminal violence.
Appendix I.A. Selected Highlights of the History of the Struggle for
Domestic Partnership Benefits – 1992-1998
[Addessa compilation –if any errata, please inform)
At a meeting convened by the Task Force with Mayor Ed Rendell in April 1992, the Mayor said that he would support the extension of economic benefits to gay and lesbian couples but would not support legislation inclusive of non-gay unmarried heterosexual couples.
In 1992-1993, Councilmember Angel Ortiz in close collaboration with a diverse range of community leaders and attorneys constructed a domestic partnership bill that would extend benefits to gay and lesbian couples as well as to non-gay unmarried heterosexual couples. The legislation would prohibit discrimination in employment, housing, and in public accommodation; would require contract compliance with ERISA exceptions; would exclude domestic partners from local realty transfer taxes; and would enable city workers to name anyone as a beneficiary in city pension plans. These initiatives, properly, included a public registration component and required the Department of Records to develop uniform and appropriate documents to provide for the establishment and termination of "domestic partnership" relationships.
In May 1993, one week prior to Ortiz’ planned introduction of a gay and non-gay domestic partnership bill (Bill 552), Mayor Rendell through Councilmember Kenney introduced and subsequently withdrew support for gay and lesbian specific legislation (531). At that time, Council President John Street joined in a remarkably unholy alliance with members of the Catholic hierarchy and the Black Clergy who rallied, with extraordinary hypocrisy, against diverse family formations and against both proposals, ostensibly, to promote and protect the sanctity of marriage and, despite global overpopulation, to promote procreation [1]. Council hearings were held on both bills which were stalled in the Rules Committee and tabled.
In November 1993, Rendell at a second private meeting with various community leaders promised to issue an executive order and to support the reintroduction of legislation; in January of 1994, he reiterated this commitment through the gay press. In April 1994, Rabbi Rebecca Alpert, CoChair of the Mayor’s Commission on Sexual Minorities, resigned citing the Mayor’s apparent lack of seriousness about his commitment and his consistent failure to meet with the Commission about the issue.
In June 1996, Rendell issued an executive order extending employment benefits to exempt (non-union) gay and lesbian city workers, affecting a handful of people. In June 1996, city council hosted hearings on an bill proposed by Street (960533) to subject the equalization of employment benefits to a referendum, which would have been counterproductive and illegal.
Appendix I.A. Selected Highlights (continued)
On the Table: April 1998
In February 1997, Ortiz and council members DiCicco and Cohen introduced legislation (Bill 970740) that would amend the Philadelphia Fair Practices Act to enable, in effect, the extension of workplace benefits to public and private sector gay and lesbian couples as well as to non-gay, unmarried heterosexual couples, a replication of the 1993 initiative [Please see discussion above and footnote 2]. In March 1997, a gay and lesbian specific version of Bill 970740 was introduced by Councilmembers Ortiz, Cohen, Kenney, Fernandez, DiCicco, and Longstreth (Bill 970181).
In November 1997, three companion bills (Fair Practices 970750; Realty Transfer 970749; and Retirement System Ordinance 970745) were introduced that seem to replicate, in part, the gay and lesbian specific Bill 970181 (March 1997). The three bills, in effect, (1) would enable the extension of workplace benefits to city workers
(excluding contract compliance provisions) and would prohibit discrimination in public accommodations; (2) eliminate local realty transfer taxes for life partners; (3) enable all eligible city workers to select pension beneficiaries of their choice [3]. Two of the relevant bills (970750 and 970749) omit the necessary public registry system to implement each bill’s intent and should be amended to provide for such registry. Each of the proposed bills exclude the majority of the human race in the use of arcane, male gender-specific language.
The November 1997 amendments to the Fair Practices Act (1) seem to exclude unmarried heterosexual couples, though the definition of marital status may be sufficiently broad to permit the extension of benefits to non-gay couples; (2) exclude contract compliance provisions; and (3) create a gender-based BFOQ (bona fide occupational qualification) that may be valid or may serve as a subterfuge to avoid compliance with the law (Sec. 9-1103. Sec. 4 c(.1) ). While long overdue amendments to the Municipal Retirement System properly permit a worker to designate any beneficiary, Section 112.1 would seem to preclude now retired employees from exercising this option.
Notes:
[1] Interestingly, Street and the religious-based right wing failed to acknowledge that the promise of procreation has never been a precondition for the grant of a marriage license, is independent of such license, and no longer requires heterosexual conduct, per se, to effectuate.
[2] The Fair Practices Act reaches both public and private employment. Additionally, Ortiz’ 1993 and 1997 proposals require businesses that contract with the city to provide the same benefits to domestic partners as those provided to employees with spouses. (Exception: ERISA controlled plans which may permit discrimination)
[3] Since 1980, the prohibition against unfair housing practices, excluded from Bill 970750, has included the category "marital status" -- the proposed legislation expands the definition of "martial status" to include "life partner."