April , 2019

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For Children in LGBT Unions, Supreme Court Ruling Falls Short

New America Media

By Paul Kleyman

Whichever way the Supreme Court wind blows for or against the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, many children in lesbian, gay, bisexual and transgender (LTBT) families will continue to be shortchanged by current Social Security restrictions. The program’s rules are unfavorable to them, but not to minors in families with heterosexual parents, stepparents and even grandparents.

Experts say that only action by Congress—unlikely in the current political atmosphere—or possibly by the Social Security Administration could remedy the inequity.

A recent report, “Living Outside the Safety Net: LGBT Families and Social Security,” states, “In the absence of fair adoption laws, thousands of same-sex parents across the country remain legal strangers to the children they are raising.”

The report, released by the National Committee to Preserve Social Security and Medicare (NCPSSM) and Human Rights Campaign Foundation, explains, “Many same-sex couples use adoption to form their families. When one parent is the biological parent, or when joint adoption is not permitted under state law, second-parent adoption is the only option that allows a same-sex partner to legally adopt his or her biological or adoptive child while leaving the rights of the ‘first parent’ intact. Access to adoption for same-sex parents is far from universally accessible — in fact only 18 states make second-parent adoption available.”

In the 32 states that don’t recognize second-parent adoption, when a child loses a parent “who is not tied to them biologically or through adoption, the Social Security system determines that they are not eligible to receive any benefit,” says the report.

“Living Outside the Safety Net,” goes on to say, “A child becomes eligible for Social Security benefits when a parent becomes disabled, retires or passes away.”

The study’s authors, Carroll L. Estes, emeritus co-founder of the University of California, San Francisco’s Institute for Health and Aging, and Robin Maril, Legislative Counsel of the Human Rights Campaign, continue, “Recognizing the power of these benefits to ensure a consistent quality of life for a family, the Social Security Administration also considers stepchildren and step-grandchildren to be eligible despite the absence of a legal, formal relationship with the working parent.” But not children of same-sex parents.

Call for Federal Redefinitions

Currently, Social Security provides family benefits to 4.4 million children. According to a study by the Family Equality Council, [www.familyequality.org], LGBT parents are raising as many as 2.8 million children in the United States, a “number is expected to grow in the coming years.”

The report goes on, “Same-sex couples of color are more likely to be raising children than white same-sex couples.” Overall, four in 10 same-sex couples with children identify as non-white compared to about one-quarter of married heterosexual couples with children.

Calling for redefinitions in the federal agencies, the Council’s 2012 report, “Strengthening Economic Security for Children Living in LGBT Families,” stresses, “The average annual loss of child survivor benefits for families when a deceased parent goes unrecognized for Social Security purposes is $9,420.” That sum can draw the line against economic struggle or poverty for many families facing the loss of a breadwinner.

What’s more, say Estes and Maril, many children with disabilities in LGBT families are shorted by Social Security’s present definitions, because minors are determined eligible for benefits based on their parents’ work history.

“If the disability begins prior to the child’s 22nd birthday, benefits can last throughout the child’s lifetime,” they state, “Over a 30 year period, an adult disabled child of a legally-unrecognized parent would forfeit, on average, $254,102 in Social Security benefits.”

In Congress, the Social Security Equality Act of 2012, introduced by Rep. Linda Sanchez, D-Calif., with almost 100 co-sponsors and would give benefits to LGBT partners. Not surprisingly it was buried in a House committee.

Another remedy might be action by the Social Security Administration (SSA). But legal and legislative advocates differ on whether the soon-to-be nominated new U.S. Commissioner of Social Security would, or could effect a more equitable policy.

Web Phillips, senior legislative representative of the NCPSSM, said in an email that he’s “not optimistic that the Commissioner of Social Security has much discretionary decision making authority with regard to relationship determinations made in association with claims for Social Security child benefits.”

Phillips said the rules for qualifying for benefits are “spelled out in great detail in the legislative language itself rather than through regulations that are promulgated by the Commissioner.” However, he said, a broad Supreme Court decision striking down DOMA and other statutes discriminating against children of LGBT families, could force such a change—but not swiftly even then. “It is a very complex area of law,” he said.

SSA Action Possible, If Controversial

Nancy J. Altman, co-director of Social Security Works and author of The Battle for Social Security (Wiley, 2007) said, “I would think SSA could define children of intact same-sex couples who were prohibited from marrying under state law as ‘de facto’ step children. For that matter, ‘de facto spouses’ might be able to get benefits in that situation as well. There would have to be proof that the couple is all but married and would have married if state law allowed it.”

She added, “Of course it would be controversial, but I don’t see who would have standing to challenge it. So a commissioner willing to take the heat could probably make the change, especially because of the stepchild coverage.”

Many sources in Washington these days expect President Obama to take a no-chances approach to his choice for SSA Commissioner. (It is a so-called non-political appointment. This means that once a sitting president nominates someone, if the person is confirmed by the U.S, Senate, he or she serves a six-year term and cannot be removed except for malfeasance and so on.

President Obama has already shown forceful leadership through executive action in other areas, such as with the don’t-ask-don’t-tell policy and by offering a fairer path to undocumented youth last year. Could there be congressional or administrative fairness for LGBT-family children? Regardless of the Supreme Court’s same-sex marriage rulings, that’s a question that still needs to be brought up.

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