5 years later, benefits policy remains unchallenged

Posted on 01 Oct 2009 at 9:20pm
By JOHN WRIGHT | News Editor wright@dallasvoice.com

Only 26 people have signed up for partner benefits in Dallas, where only same-sex couples are eligible, but in Austin, where hetero couples are also eligible, more than 200 are enrolled in domestic partner benefits program

GAY RIGHTS BACKERS | Gay former Dallas City Council members Ed Oakley, left, and John Loza and former Mayor Laura Miller were all on the council when it approved domestic partner benefits in 2004. Loza said this week he stands by the decision not to offer the benefits to unmarried heterosexual couples.

When the city of Dallas became the first in Texas to offer benefits to the domestic partners of gay and lesbian municipal employees in October 2004, it was seen as a bold move and is regarded as an important milestone in the local struggle for LGBT equality.

Five years later, Dallas is one of three cities in Texas that offer DP benefits, and to the surprise of LGBT advocates, the benefits haven’t been challenged in court under the state’s 2005 constitutional amendment banning same-sex marriage, which also prohibits cities from creating or recognizing “any legal status identical or similar to marriage.”

Dallas, unlike Austin and El Paso, limits domestic partner benefits to same-sex couples and doesn’t offer them to unmarried straight couples, which has significantly reduced enrollment and, according to experts, could make the program more vulnerable to a lawsuit.

However, there’s been neither a council proposal nor a push from the LGBT community to open up DP benefits to unmarried straight couples. And in fact, the consensus seems to be that if the city is to make changes in the area of DP benefits, those changes should be related to encouraging or requiring major contractors to provide them to their employees.

There currently are 26 people enrolled in Dallas’ DP benefits program, according to Dolores Lewis in the city’s Human Resources Department. That’s compared to nearly 10 times as many, 228 people, who are enrolled in DP benefits in Austin, said employee services manager Karen Haywood.

Haywood said Austin doesn’t track whether employees who enroll partners in the city’s DP benefits program are gay or straight, but she said she believes the majority of them are unmarried heterosexual couples.

John Loza, the openly gay former Dallas city councilman who helped push through DP benefits, said he stands by the decision to limit them to same-sex couples — which was made despite concerns that it would run afoul of the city’s own nondiscrimination ordinance.

Ken Upton

“Heterosexuals have the option of getting married, and if we’re talking about just fundamentally being fair, since we in the gay community don’t have that option, I never had a problem with just limiting it to same-sex couples, and I don’t have a problem with that now,” Loza said.

Loza called DP benefits the second most important thing the council has done in favor of LGBT equality, behind the citywide nondiscrimination ordinance that was approved two years before the benefits policy. The ordinance prohibits discrimination based on sexual orientation in employment, housing and public accommodations.

Loza said DP benefits are critical not only in terms of fairness to gay and lesbian employees, but also in terms of making the city competitive given that a steadily increasing number of public and private employers offer them.

Loza added that he was surprised that the amendment adding DP benefits to the budget in 2004 — at an anticipated cost of about $30,000 annually —saw little to no opposition from other council members.

“It really went through without a great deal of debate,” Loza said. “It didn’t prove to be controversial.”

It’s also somewhat surprising that the benefits haven’t been challenged in court, Loza said, and that enrollment remains relatively low. He suggested enrollment may be low because the city hasn’t done a good enough job of publicizing the benefits.

But others said they believe one of the primary factors limiting enrollment is the sheer cost to employees of adding benefits for partners — married or otherwise.

Like many employers, the city of Dallas doesn’t subsidize benefits for partners or spouses — only for children.

“I have domestic partner benefits available to me through my employer, and [partner] Erin [Moore] has domestic partner benefits available to her through her employer, but it’s cheaper for us to maintain them separately,” said Patti Fink, president of the Dallas Gay and Lesbian Alliance.

Fink also noted that unlike married couples, same-sex couples pay taxes on income used to pay for benefits for their partners.

“The economics of it may be influencing how many people are accessing it, but for those people who can’t get it through another avenue and can’t afford to pay the cost, I think having that avenue to get those benefits is very important,” Fink said.

Fink said she would support offering DP benefits to unmarried straight city employees, as long as it didn’t affect or increase restrictions on gay and lesbian employees’ ability to access them. The city currently requires that domestic partners sign an affidavit saying they “reside together in the same permanent residence and have lived in a spouse-like relationship for at least six consecutive months.”

Asked whether the city should require major contractors to provide DP benefits — as some other cities and states have done — Fink said the priority right now should be ensuring that companies doing business with Dallas have nondiscrimination policies that include sexual orientation and gender identity.

The question of requiring contractors to offer DP benefits in Dallas arose earlier this year in the case of Omni Hotels, which will operate the city’s $500 million convention center hotel. Irving-based Omni Hotels doesn’t offer DP benefits to employees — which is very unusual in the hospitality industry — but agreed to do so at the convention center hotel after the issue was raised by Dallas Voice.

Loza called requiring city contractors to offer DP benefits “the next logical step.”

“Politically, that’s a little more difficult, to be honest, although I think it would probably pass the council if it were put to a vote,” Loza said.

Some have expressed concerns that requiring contractors to offer DP benefits could trigger a lawsuit on the basis of the constitutional amendment.

“I’m never been a big believer that you don’t pass a law because someone might sue you,” Loza said. “In this society people sue for any number of reasons. … That doesn’t mean you shouldn’t be bold in trying to right wrongs, as it were.”

Ken Upton, a senior staff attorney for Lambda Legal, the LGBT civil rights group, said he doesn’t think requiring contractors to offer DP benefits would expose the city to a potential lawsuit. He said generally the city can require contractors to do anything that isn’t illegal.

Upton noted that DP benefits for government employees have been challenged, with mixed results, in a few states with constitutional amendments prohibiting same-sex marriage. He added that a common way of avoiding or addressing those lawsuits is to open up the benefits to unmarried heterosexual couples.

Asked whether he thinks Dallas should do so proactively, Upton said, “If no one’s challenged it,

I wouldn’t mess with it.”

But Upton acknowledged that limiting DP benefits to same-sex couples may be an example of “reverse discrimination,” and he said it raises “a bigger public policy issue.”

“Is it right to make them get married just to get health insurance benefits? I’m not sure that’s good for the institution of marriage,” he said. “It does raise the issue about, what happens when you make marriage the only way to access the type of benefits that most people really need in life? In some ways the Austin model might be preferable, because married people can still get benefits, and different-sexed couples don’t have to get married to get the benefits.

“It’s all about making sure your employees are treated equally and have access to the types of things they need to be productive.”

In any case, Upton said he thinks the fact that Dallas’ ordinance has never been challenged in court is a credit to the city.

He said the council approved DP benefits at a time when anti-gay rhetoric was ratcheting up around proposed marriage amendments in Texas and other states.

“It was kind of risky,” Upton said of the council’s decision. “I have to be honest, I was kind of surprised … but Dallas has done some pretty progressive things.

“I think it’s something we can be proud of,” he said. “To do anything nice for gay people in the South was a pretty bold move, and the fact that it really has never attracted a lot of heat, it says something I think for Dallas.”

This article appeared in the Dallas Voice print edition October 2, 2009.

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