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July 30, 2015

Who Should Pay for SSA’s Discrimination Against Same-Sex Couples?

In class action lawsuit, GLAD and Justice in Aging say it should be SSA 

Anti-LGBT discrimination hurts everyone in our community. But the impact on those who are economically vulnerable can be devastating.

The Supplemental Security Income (SSI) program exists to assist those with extremely limited resources due to age and/or disability. Over the past year, GLAD and our partner organizations began hearing from SSI recipients married to a same-sex spouse that they were suddenly receiving demands from the Social Security Administration (SSA) to repay thousands of dollars in so-called overpayments.

The fact is that after the federal Defense of Marriage Act (DOMA) was ruled unconstitutional, SSA continued to discriminate against same-sex couples by failing to recognize their marriages, even in cases where SSI recipients informed SSA that they were married. SSI has a marriage penalty, so benefits for unmarried individuals are higher than for married individuals and SSA continued to issue benefits as if the married individuals were single.

Then suddenly, more than a year later, the agency began demanding that recipients refund the benefits they were paid as a result of SSA’s own discrimination against them.

In March, GLAD, Justice in Aging and Foley Hoag LLP filed a class action lawsuit against the SSA on behalf of Kelley Richardson-Wright of Athol, Massachusetts, who is married to Kena Richardson-Wright; Hugh Held of Los Angeles, who is married to Orion Masters, and other SSI recipients married to someone of the same sex in or before June 2013.

Kelley and Hugh, like others receiving SSI, are working hard to get by on extremely limited means. Not only do they not have the ability to repay what SSA demanded, the agency’s attempts to withhold money from their current benefits as a result of its own discrimination created significant hardship and stress. [Read more about Kelly and Hugh’s stories here]

“Basically Social Security kept making SSI payments after the fall of DOMA without considering the marriages of same sex couples, even when a recipient notified SSI of the marriage,” says Vickie Henry, Senior Staff Attorney for GLAD. “More than a year later, SSA, to remedy its own unconstitutional conduct, started going after people who are both poor and aged or disabled and demanding thousands of dollars from them. That’s not fair, and it’s not right.”

As a result of our action, SSA has granted a waiver to Kelly and Hugh and has issued an emergency order effective May 6, 2015, putting a hold – at least temporarily – on issuing new overpayment notices to SSI recipients resulting from a change in recognition of a beneficiary’s pre-existing same-sex marital status. The hold is effective until October 30, 2015, while SSA considers our lawsuit.

While this is great news that will provide at least temporary protection for our clients and some other SSI recipients, it does not yet help others who have already received a notice of overpayment, and it does not address all the harms experienced by our clients and others in this situation.

SSA has filed a motion to dismiss our lawsuit, claiming that because our clients applied for and received a waiver (after our suit), its process worked. Essentially, SSA’s position is that it is acceptable to unconstitutionally put someone in peril and then say that is ok because SSA gives them an appeal process.

But that appeal process should never have been necessary in the first place. SSA has continued to behave unconstitutionally since Windsor and someone has to bear the cost of that wrongful behavior – we believe it should be SSA and not our clients who suffered the discriminatory treatment.

“It’s like someone setting fire to your house and then wanting to be thanked for extinguishing the fire,” says Henry of SSA’s argument.

Case documents and details are available at www.glad.org/ssi

If you or someone you know has received a notice of SSI overpayment due to a change in recognition of your marriage, please contact GLAD Senior Staff Attorney Vickie Henry .(JavaScript must be enabled to view this email address) or www.GLADAnswers.org as we continue to work on this issue.