LGBT Americans currently find themselves at the nexus of two major political debates that are raging within the state and federal legislatures: same-sex marriage and healthcare reform. As a result, it's especially important that we consider how these issues are intertwined, so that any headway we make on one front can support and inform our efforts on the other.
A recent New York Times article demonstrates how closely these issues are linked for LGBT persons seeking health coverage through a domestic partner employed by the federal government. Whether the government must provide health insurance benefits to such individuals has remained a contentious issue since the mid-nineties, when the Defense of Marriage Act (DOMA) was passed by Congress by a vote of 342-67 in the House of Representatives and a vote of 85-14 in the Senate and was signed into law by President Bill Clinton on September 21, 1996. Specifically, the law has two effects:
No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
Importantly, DOMA stipulates that "the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." If only rapidly advancing same-sex marriage legislation could render this matter of semantics obsolete, LGBT Americans would be much better off when it comes to accessing health care.
Although two judges (one liberal and one conservative) of the federal appeals court in California recently ordered that employees of their court have the right to receive health benefits for their same-sex partners under the same program that offers health insurance to millions of federal workers, the federal Office of Personnel Management has cited DOMA in countering their decision, mandating that insurers not provide the benefits ordered by the judges.
Stephen Reinhardt, one of the two Californian judges, eloquently concluded that DOMA was unconstitutional because it violated the Fifth Amendment guarantee of "due process of law," saying that "a bare desire to harm a politically unpopular group cannot provide a rational basis for governmental discrimination." Because denying health coverage to same-sex partners would not encourage gay men and lesbians to marry members of the opposite sex, Reinhardt argued that Congress' supposed interest in "defending and nurturing the institution of traditional heterosexual marriage," does not hold water when it comes to extending healthcare coverage.
Despite Reinhardt's sound argument, Lorraine E. Dettman, assistant director of the personnel at the Administrative Office of the United States Courts, said that, "Plans in the Federal Employees Health Benefits Program may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law."
More than 46 million Americans are currently uninsured, a crisis that is certain to be addressed through imminent healthcare reform legislation. Key components set to emerge from a combined Baucus-Kennedy bill later this month will be the development of a public health insurance plan that will drive a restructuring of the current private insurance market; healthcare cost containment provisions; a revision of how healthcare providers and hospitals are reimbursed for medical care; and a strategy for financing these reforms.
Despite these significant changes to our system, I am concerned that the issue of health disparities among minority populations will not remain central to the healthcare debate. If not, even with drastic expansion of health coverage to all Americans, the playing field for accessing care will remain woefully uneven during the initial reforms and beyond for those LGBT Americans who are still unable to access coverage through their legal same-sex partner's family plan - even with the advent of a public option.
This matter is not insignificant, as countless LGBT Americans will continue to suffer from having a far more limited array of options for accessing health care than their straight counterparts.
CDC's estimates from the 2003 National Health Interview Survey (see Table 7) revealed that marriage is a strong predictor of health insurance coverage in the United States; as those who are married are far less likely to be uninsured (12.6%) than people those who are living with a domestic partner (31.7%) or those who have never been married (26.9%).
According to a 2006 study from the American Journal of Public Health:
It is notable that rates of health insurance coverage were lower among [same-sex relationship] women than [opposite-sex relationship] women; this finding might be at least partially attributed to the inability of same-sex couples to marry or form legal partnerships in most states.
The story of Nancy Gill and Marcelle Letourneau, from Bridgewater, Massachusettes, clearly demonstrates the reason for this disparity. Both lesbians, Gill and Letourneau began dating in 1980 and subsequently had multiple children together. They were married on May 17, 2004, on the first day same-sex couples could obtain marriage licenses from their state. However, some time later, when Nancy applied to put Marcelle on her health insurance plan through her employer, the federal government, she was denied coverage. Those denying health insurance benefits to Marcelle, Nancy's spouse, immediately cited DOMA.
Importantly, among gay men the issue of same-sex marriage is not just about equitable healthcare access, as it has been shown to have a significant impact on crticial determinants of gay men's health - even prior to them attempting to seek care through their more limited set of options. A recent study from Emory University revealed that juristrictions with bans on same sex marriage actually show increased risk for HIV infection among gay men.
The two Emory economists who authored the study measured the impact that social tolerance levels toward gays in the United States had on the HIV transmission rates, and estimated that "a constitutional ban on gay marriage raises the rate by four cases per 100,000 people." Conversely, they calculated that a rise in tolerance and acceptance of gays from the 1970s to the 1990s reduced HIV cases by one per 100,000 people.
The study used data from the General Social Survey, which has tracked the attitudes of Americans during the past four decades; and the economists' conclusions were found to be both "statistically significant and robust," holding up under a range of empirical models. Their rationale for the observed link between such legislation and HIV infection rates among gay men is that "bans on gay marriage codify intolerance, causing more gay people to shift to underground sexual behaviors that carry more risk."
Simply put, "Intolerance is deadly," especially among gay men. As such, banning same-sex marriage saddles the gay community with a double whammy of both being placed at greater risk for contracting HIV and other sexually transmitted diseases and being faced with more limited opportunities for accessing care.
Both Senator Joseph Lieberman (I-CT) and Representative Tammy Baldwin (D-WI) plan to introduce bills that would provide benefits to same-sex partners of federal employees as part of health reform this summer. Although similar bills died in the past, I believe that with President Obama in the White House and current momentum to implement sweeping health reforms addressing the growing health disparities among all minorities that there is a renewed hope that LGBT Americans may finally make headway on this front.
Richard Socarides, a New York lawyer who advised President Bill Clinton on gay issues, said that President Obama should have "broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination."
Now the time is ripe (if not long overdue) for him to implement those changes - as fair and equitable access to health care for LGBT Americans is a basic human right that has been legally obstructed by our federal government for far too long.