Jun 28, 2017


Gay at U.Va.: Part I

Is the University doing enough to support its LGBTQ employees?

When Ellen Bass, an associate professor in the department of Systems and Information Engineering, came to the Charlottesville in 2002 with her partner and son, she had to overcome a huge financial hurdle.

“It cost me thousands of dollars to be a gay person,” Bass said, recounting, “I didn’t get moving benefits for my partner, I didn’t get help to find my partner a job, I couldn’t insure her or her son with my health benefits” – options that a heterosexual employee of the University would enjoy.

The University’s current equal opportunity and affirmative action statement, which was updated as recently as January 6, 2011, includes sexual orientation on a long list of traits that the University disregards while administrating its programs, procedures and practices. However, same-sex couples have yet to receive the equal benefits described by Bass.

A statewide battle

Article 1, section 15-A of the Virginia Constitution, which was amended after a statewide vote in 2006, not only bans same-sex marriages and unions, but also prohibits the commonwealth and its political subdivisions from recognizing “another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

This code prohibits the University and other state-affiliated organizations from offering its same-sex employees partnership benefits, said Susan Carkeek, the University’s chief Human Resources officer. However, the University has remained supportive of affording such benefits in the past, Carkeek noted.

In 2006, Gov. Tim Kaine proposed a plan to extend employee health benefits to same-sex partners working for the commonwealth of Virginia. Under Kaine’s plan, qualified adults who occupy the same household as state employees and meet specific requirements would be allowed health coverage. While opponents of the proposal lambasted it for being too expensive at the time, Kaine’s office suggested that it would not cost the state a penny, as employees would be paying the coverage themselves.

The proposal was not adopted, but Carkeek said the University “actively supported the initiative”.

Although Gov. Bob McDonnell has been a supporter of Virginia’s current marriage laws, he issued an executive directive in March 2010 in which he established a standard of conduct that prohibited any kind of discrimination, including sexual orientation.

The directive came in response to an order from Attorney General and University alumnus Ken Cuccinelli that Virginia’s public universities must remove sexual orientation from their anti-discriminatory policies.

Meanwhile, governments near the commonwealth, such as Maryland and the District of Columbia, have adopted proposals to extend such health benefits to all of their employees.

A possible solution

Although the University blames current Virginia codes for barring it from offering health benefits to the partners of same-sex employees, Claire Guthrie Gastañaga, a former chief deputy attorney general for the commonwealth who now runs her own consulting firm, suggests that the University does in fact have the ability to extend health benefits to same-sex partners despite the state’s current codes.

Under Virginia code 23-69, the University is defined as a corporation. Gastañaga said this definition gives the University the ability to exercise certain corporate powers, such as extending health benefits to same-sex partners. Gastañaga also noted that, while the University is subject to the control of the General Assembly and the Virginia constitution, Virginia legislators would have to pass a law that specifically prohibits the University from extending health benefits to same-sex partners to prohibit such an action.

“It’s very broad language,” Gastañaga said of Virginia’s marriage codes.

Gastañaga also referenced the 14th Amendment to the U.S. Constitution and its equal protection clause, which should preclude discrimination against lesbian, gay, bisexual, transgender and queer employees for the commonwealth.

The University could also legally extend health benefits to same-sex partners by making them available to “other qualified adults,” Gastañaga said. Such a measure, which has been adopted by other universities such as the University of Michigan, would allow University employees to add to their benefits plan another person living in their household, so long as that person meets certain requirements.

Although the state of Michigan’s laws explicitly prohibit same-sex marriages and civil unions, and a court order has prohibited gay public employees from receiving domestic partnership benefits, the University of Michigan has developed policies that legally extend health benefits to same-sex partners, who can receive them as “other qualified adults.”

“Although [the University of Michigan] does not offer benefits based on a domestic partnership, coverage for an adult who shares primary residence with the [University of Michigan] employee can be elected when all [other qualified adult] requirements are met,” the University of Michigan’s website states.

Under the University of Michigan’s definition, “other qualified adults” include those who have shared a residence with the employee for six continuous months, but excludes parents, parents’ other descendants, grandparents and their descendants, renters, boarders, employees, tenants and children and their descendants. The University of Michigan’s guidelines also offer benefits to the children of other qualified adults, who may be able to receive benefits as dependent children.

“We at Michigan, for a number of years, have offered benefits to same-sex partners,” said Ted Makowiec, the University of Michigan’s senior director of benefits. When the state of Michigan adopted laws that prohibited same-sex partners from receiving health benefits from public institutions, the University of Michigan had to alter its policies. “The best thing for the university population was to modify this and create other qualified adults,” Makowiec explained.

Although the University of Virginia does not offer a similar benefit plan, LGBTQ employees of the University did win a minor battle in 2007, when McDonnell, then the attorney general, issued an opinion stating that extending gym memberships to unmarried couples did not conflict with state laws. Gastañaga believes the University could successfully work to extend other benefits.

“Because the University is subject to the control of the General Assembly, leaders have been afraid to exercise their power to make change, believing that they might get slapped down by the legislature or lose funding,” Gastañaga later said in an email.

She continued, “From my perspective, it basically boils down to deciding what side of the fight they want to be on: Slapped down for trying to lead in the right direction and gaining national positive attention and improved faculty and student recruiting and retention for doing so, or criticized for failing to lead and losing good faculty/students because of the failure.”

Deeper issues

The University’s inability to extend benefits to the partners of same-sex employees not only raises questions about equality, but also creates additional institutional problems.

The lack of such benefits makes the University less competitive when attracting new faculty and staff who may identify as gay or lesbian. Carkeek admitted that the University’s current policies make it less attractive to certain potential employees. “Not being able to offer benefits to domestic partners makes the U.Va. benefits package less competitive than that of other universities we compete with for the best faculty and staff,” she said.

“A lot of people don’t come here in the first place,” Bass, the University professor, said in regard to potential gay faculty and staff. “People leave, we don’t have a large number. If you identify a great LGBT person, it’s very difficult to bring that person’s partner in because it won’t help them get a job.”

Although Bass suggested that satisfaction among the University’s gay and transgendered employees is low, she also said there is no way to accurately measure satisfaction among such employees because the University has not kept record of its gay and transgendered employees.

The University routinely surveys faculty and staff about the quality of employment.

Earlier this year, for instance, the University published results from its Academic Staff Survey, which collected 5,000 surveys from salaried staff members to garner the staff’s views of the workplace.nThe survey suggested that the University’s staff is satisfied with the University’s current benefits, said Tom Guterbock, the director of the University’s Center for Survey Research and a professor in the sociology department. However, Ed Strickler, who works for the University as a public information specialist for the department of psychiatry, says such a high satisfaction level does not apply to the University’s LGBT staff members.

Strickler said the survey asked a variety of personal questions, including race and gender, but did not ask about sexual orientation. Guterbock said the survey committee excluded such information from the survey because it is “highly sensitive” and could present problems for employees if it fell into prejudiced hands.

“We make the survey anonymous, however, because it’s an employee survey, it’s easy to identify individuals indirectly … if they have unique characteristics. So if we asked highly sensitive [information] of people, then the question becomes, ‘Who has access to that?’” Guterbock said, adding that the next time such a survey is conducted, the option of adding a question regarding sexual orientation would be discussed thoroughly and probably could be added after changing certain protocols.

The survey did include an open-ended question, giving staff members the chance to address issues not included on the survey’s questionnaire. Strickler went through the answers to the open-ended questions, which are available to view online, and found that LGBT staff members expressed dissatisfaction with their work environment.

Staff comments from the survey included, “Your survey should ask about sexual orientation, since it is anonymous. You should care whether gay people feel comfortable at U.Va.,” and “I think the University could do significantly more to support its gay employees … Discrimination is so pervasive that it will only be repaired with a grassroots movement. The University has influence. Please use it.”

“Real employees of the University are saying, ‘I have a real problem,’” Strickler said.

Because the survey did not explicitly ask about a staff member’s sexual orientation, however, it’s impossible to accurately measure the satisfaction among the University’s LGBT staff members, he said.

“We have a chick and an egg problem,” Bass explained. “If you want to figure out problems, you need to send out a survey. Because we don’t track people and don’t know who to contact … we can’t find the people who might have the issues, and they’re not coming forward,” she said.

Strickler reiterated that discrimination of LGBT people remains a critical issue among all workplaces today, citing a study published this past July by the Williams Institute, a University of California at Los Angeles research organization dedicated to LGBT issues, that found 37.7 percent of out employees experienced discrimination in the workplace as a result of their sexual orientation, while 38.2 percent experienced harassment and 9.2 percent lost a job because of their sexual orientation.

Growing support

There are outlets of support for the University’s LGBT employees. Both Bass and Strickler are co-conveners for U.Va. Pride, an organization that serves the needs of the University’s LGBT faculty, staff and graduate students. Founded in 1992, the organization has been key to bringing LGBT issues to the forefront of University politics, as well as creating a supportive and social environment for the University’s LGBT community.

Bass said even more needs to be done, however, particularly on the administration level. Bass recounted past calls for the University’s administration to conduct focus groups and survey targeting its LGBT faculty and staff, but such calls have come up short, with the University citing budgetary reasons for its inability to collect such data.“I feel like the administration should make that investment. They find money for things when they need it, but they’re saying that this is not a priority,” Bass said.

The University has recently taken a step toward becoming a leader on LGBT issues with plans to create a subcommittee of its Diversity Council that will address LGBT issues. Marcus Martin, the University’s vice president and chief officer for Diversity and Equity, the subcommittee will “look at [LGBT] concerns and issues and address them in a systematic fashion.”

Lauding the Diversity Council’s support, Strickler stated, “It was so nice to have the affirming response from the Diversity Council.”

But the lack of health benefits for same-sex partners still remains a pertinent issue. Apart from creating a tremendous financial hurdle for the University’s LGBT employees, the absence of such benefits “adds to the environment of stigma and bias,” Strickler said, adding that the University’s current policy says to its LGBT employees, “Your health doesn’t matter like other people’s matters.”

Editor’s note: This is the first of a three-part series about gay life at the Univesrity. Part II discusses the University environment for LGBTQ students. Part III focuses on the changes that some students believe need to be changed going forward.

Published August 29, 2011 in Focus

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Tom Lang
(12/31/69 7:00pm)

This comment has been removed because it violates the portion of our comment policy regarding slanderous statements.

(12/31/69 7:00pm)

Then don't be gay.

Kyle O'Donnell
(12/31/69 7:00pm)

Both Gastanaga and the editor err in forwarding the argument that one's sexual preference falls under the protections of the 14th amendment. Firstly, the 14th amendment affords no protections; States afford protections. It states rather that "nor shall any State ... deny to any persons within its jurisdiction the equal protections of the law," and earlier defines "citizens" to be "all persons born or naturalized in the United States," without any further qualification of any kind. In that respect, yes, homosexuals, like heterosexuals, are citizens of the United States, just as any member of any race or religion or physical stature is also a citizen of the United States, so long as they are born here or officially naturalized. As citizens, the 14th amendment further establishes that any "privileges or immunities" they hold cannot be abridged by State governments. Note that both privileges - positive rights - and immunities - negative rights - must be granted by the same State governments which the 14th amendment limits; otherwise such privileges and immunities would simply be arbitrary assertions with no force of law, without any form of compulsion. If Gastanaga and the editor wish to argue that certain "privileges" for homosexual partners- such as similar pecuniary compensation from the State and its institutions as that granted to married couples - then these privileges must first be granted by the General Assembly. Because the General Assembly has not granted these privileges, Gastanaga, the editor, and those like-minded, may be inclined to suggest that legislature is then violating the second part of the 14th amendment, aforementioned, which requires equal protection under the law to be extended to all. Yet this cannot be the case. The legislature has denied homosexuals no protection under the law that is entitled to them as citizens qua citizens of the United States. Here ideologues have confused immunities with privileges. The non-discrimination policy of the Commonwealth precludes discrimination based upon sexual orientation, meaning it will not prevent anyone who professes a certain sexual orientation from receiving any established benefits or performing any functions that any other citizen may perform; these are immunities from directed discrimination against citizens qua citizens. The privileges sought, however, are not privileges for citizens qua citizens; marriage is not a right of a citizen, at least not official recognition of said marriage. The State licenses unions between people, and grants them beneficiary status based upon what the State perceives to be its value. By setting a defined qualification, therefore, the State is necessarily precluding certain, seemingly similar unions, from receiving those same benefits. This Commonwealth does not recognize unions between different species, nor does it recognize unions between adults and children, because it deems these to be either unhelpful unions to society and thus not worth the support of the public, or it deems them revolting and conducive to moral decay, and thus ought to be discouraged with all the force of public. Likewise these stances are taken against the union of two people of the same gender. The Commonwealth does not find it appropriate to grant homosexuals the privilege of recognized marriage status, thus precluding them from any benefits therefrom, and therefore is not barring them from any protections afforded to them. Homosexual partnerships cannot seek "equal protections of the laws" for laws which do not exist and do not apply to them. Being that the 14th amendment concerns only those privileges and immunities entitled to citizens qua citizens, and not based upon some sub-category or particular action, then the Commonwealth is in no wrong or violation. If one wants particular circumstances to change, then one must change the minds of the legislature and their laws, and not merely read one's opinions into existing laws in an insidious and beguiled fashion.

Kyle O'Donnell
(12/31/69 7:00pm)

** After rereading my comment above, I wish to clarify a couple possible misconceptions readers may have, due most likely to precarious wording on my part. First, the above discussion of law was only meant to emphasize the extreme degree of latitude the states are afforded to determine extremes of policy. Under the U.S. Constitution the States have the power to enact laws, even if one may consider those laws repugnant or even ugly in their motivations. When I say that the States are in no violation of the 14th amendment by denying non-heterosexual partners the right to officially be recognized as a couple, I mean that from a legal perspective. In terms of a normative claim of the morality of such an action, I made no comment, and left it up to reader at the end to bring change in opinion where it must go in order to make affect: the legislature. If one finds these laws ugly, then voice that, and make new ones so that people may have protections, but do not read into the constitution and laws ideas that aren't there simply because they ought to be. Second, the arguments concerning the utility and moral character of unions are both used by legislators in discussing this very topic. I did not intend to make a comment about the intrinsic similarities between bestiality, pedophilia, and homosexuality verses heterosexuality; the accuracy of such an assertion is up to citizens and their legislatures to decide upon. I do not wish to be quoted saying that because they are the same we ought discourage them, which I did not say. I said rather that because our legislature groups them more closely than they do to a defined heterosexual relationship, they are prohibited from receiving public support.**

Claire Gastanaga
(12/31/69 7:00pm)

Whew. Hard to know just where to begin to dissect Mr. O'Donnell's exigesis. So, I won't try.

For those who want a different perspective, I'll just cite to Governor (and former AG) Bob McDonnell's executive directive number 1 where he says:

"The Equal Protection Clause of the United States Constitution\nprohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one

Seth Kaye
(12/31/69 7:00pm)

Kinda disappointed by the first two comments... but here we are. Sam, you know gay people can't change or "be" anything else than who they are. See the American Psychological Association and/or Lady Gaga's "Born This Way" for the details...

Kyle, I would hope you can recognize the harm that the current system is placing on gay families by denying them health coverage among other tax benefits and rights of marriage. Whether or not you agree with the way LGBTQ people live their lives, they have families, and the status quo is punishing them economically for that. Whatever the law might be, is that fair? Is that just? If your or your child were gay, how would you feel then?

As you say, the 14th amendment provides all citizens equal protections under the law. The question is, does the Commonwealth have a compelling interest to restrict access to its healthcare benefit program (at no cost to the taxpayer as it is a pay-in system) and marriage licenses/rights on the basis of sex, gender, or sexual orientation? I would argue there is no rational basis for such discrimination - denying benefits clearly harms LGBTQ families and has no negative effects on straight people. I suppose gay people do have the same right to marry someone of the opposite sex as anybody else, but it's really quite ludicrous to say that gay people can enter into an opposite sex marriage so no discrimination is occurring. You know that LGBTQ people cannot access their due rights fully, otherwise we wouldn't be having this discussion. Loving v. Virginia clearly speaks to the importance of marriage as a fundamental right.

I think the case for employment non-discrimination is even easier. However, McDonnel's executive directive has zero force of law - it's not an executive order. It's nice that he invokes the 14th amendment, but such a statement is really just that, a statement. He only issued it to save face because Cuccinelli was embarrassing VA with his March 2010 opinion stating that colleges/universities can't not discriminate on the basis of sexual orientation or gender identity. It certainly wouldn't hold up in court and he knows it. The two of them are quite a pair. I can't wait to graduate and leave this ridiculous state for somewhere less hostile.

I suppose we'll see how all of this turns out in the Prop 8 case (Perry v. Schwarzenegger) as it makes its way through the courts. The 2006 VA marriage amendment is extremely harmful, and I hope that it gets overturned via the 14th amendment to the US Constitution. If the state legislature and the people don't do the right thing, I can only hope the Supreme Court will.

Joe Leonard
(12/31/69 7:00pm)

Nicely put, Seth. As for Sam and Kyle... words do not describe the complete and utter lack of caring anyone gives for your beliefs. If you wanna debate how to not be gay and how to enter into a straight marriage for the benefits, I welcome you to a nice slice of "My mother once told me I was $50 dollars away from an abortion" pie :)

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