The U.S. Supreme Court?ÇÖs recent decision in Bostock v. Clayton County, Georgia held that Title VII of the Civil Rights Act of 1964 protects the employment rights of individuals who are gay, lesbian, or transgender because ?Ç£sex plays a necessary and undisguisable role?Ç¥ in discrimination based on sexual orientation and gender identity. Although this case addressed whether an employer could fire an individual based on sexual orientation or gender identity, there could also be important implications for benefit plans. For example, employees could use the Bostock decision to seek coverage under group health plans for certain procedures that have traditionally been excluded from coverage, such as gender-affirmation surgery, arguing that such exclusions violate the protections under Title VII. If the plan covers implants after a mastectomy but would not cover the same procedure for an individual who is transitioning, the exclusion for transitioning individuals may also be challenged based on… Continue Reading
The IRS recently published proposed regulations that would amend various sections of the Internal Revenue Code in light of two U.S. Supreme Court rulings that upheld the validity of same-sex marriages: Windsor v. United States (2013) and Obergefell v. Hodges (2015). The IRS proposes that, for federal tax purposes, the terms ?Ç£spouse,?Ç¥ ?Ç£husband,?Ç¥ and ?Ç£wife?Ç¥ shall mean an individual lawfully married to another individual and the term ?Ç£husband and wife?Ç¥ shall mean two individuals lawfully married to each other, regardless of sex. Such terms will not include individuals who have entered into a domestic partnership, civil union, or any other similar relationship recognized by state law that is not denominated as a ?Ç£marriage?Ç¥ under state law. The proposed regulations can be found?áhere.
The U.S. Department of Health and Human Services (?Ç£HHS?Ç¥) issued guidance explaining that for purposes of the HIPAA privacy rule, the term ?Ç£spouse?Ç¥ includes individuals who are in a legally valid same-sex marriage sanctioned by a state, territory, or foreign jurisdiction; the term ?Ç£marriage?Ç¥ includes both same-sex and opposite-sex marriages; and the term ?Ç£family member?Ç¥ includes dependents of those marriages. Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying rules permitting HIPAA covered entities to share an individual?ÇÖs protected health information with a family member of the individual. The HHS guidance can be found here.
On April 4, 2014, the IRS released Notice 2014-19, which provided new guidance on the application of the Windsor decision to qualified retirement plans.?á Notice 2014-19 clarified that a qualified retirement plan is not required to recognize the same-sex spouse of a participant prior to June 26, 2013 (the date of the Windsor decision) or to recognize such same-sex spouse prior to September 16, 2013, if the participant resided in a state that did not recognize same-sex marriages.?á A plan amendment is only required to the extent the plan?ÇÖs terms are inconsistent with the Windsor decision and related guidance (for example, if the plan?ÇÖs definition of ?Ç£spouse?Ç¥ refers to the Defense of Marriage Act or applies the marriage laws of a participant?ÇÖs state of domicile).?á A plan amendment also is required if the plan chooses to apply the Windsor decision for some or all plan purposes prior to June 26,… Continue Reading
The IRS recently released answers to frequently asked questions regarding taxation of same sex couples.?á In the FAQ, the IRS reinforces its position that provisions of the federal tax law that apply only to married taxpayers or their spouses?ádo not apply to same-sex partners because federal law does not treat same-sex partners as married for federal tax purposes.?á The FAQ can be found here.