From Erez Aloni, Center for Gender and Sexuality Law Visiting Scholar and Assistant Professor Designate at Whittier Law School, cross posted from the Huffington Post:
Those of us in the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community who have fought hard for the law to recognize our relationships have at times failed to appreciate the potentially harmful consequences of such recognition — negative consequences that I term “misrecognition.” A new rule for calculating eligibility for student financial aid is but one example of a policy proposed with good intentions, but which in reality continues a pattern of discrimination against unmarried partners (including same-sex couples). In short, the new rule will financially harm those it is intended to help. Let me explain.
Under the purview of the Department of Education, the new Free Application for Federal Student Aid (FAFSA) will now include in its calculation of students’ eligibility for financial aid the income of cohabiting, unmarried parents — including same-sex spouses that are generally unrecognized by the federal government due to the Defense of Marriage Act. LGBTQ organizations have long fought for this legal change; indeed, our community has accepted it as a political victory. Gay activists and commentators argue that the new policy is more just because it reflects the real structure of families — that it validates “LGBTQ families and experience.” The Web is replete with stories of unfortunate children of same-sex couples who had to include only one parent in their applications in previous years (despite having two parents living together) and who suffered emotional pain as a consequence (even in the face of typically larger tuition grants under the old policy).
Prior to this legal change, if the parents were divorced, never married, or same-sex married couples, then a dependent student would include on the FAFSA only the income of the parent with whom she’d lived the longest during the previous 12 months. Hence, in most cases, if the parents were not married, the other parent’s income would not be included in the calculation. For two-income households, the old policy increased a student’s eligibility for financial aid as well as the amount of aid she received, oftentimes by a significant amount. Under the new rule, however, children of unmarried couples who live together (including same-sex spouses) are now required to include both parents’ incomes in the means-tested aid calculation. This will result in those students receiving less financial aid.
Why is that harmful to LGBTQ families and unmarried parents? After all, such a change simply reflects the real structure of the family, and, in the words of U.S. Secretary of Education Arne Duncan, “ensure[s] taxpayer dollars are better targeted toward those students who have the most need . . . .” In addition, the rule ostensibly targets “parents” rather than “partners”– why shouldn’t parents help pay for their children’s education, regardless of their own marital status? Isn’t this a more fair application of law? Only if considered in a legal vacuum.
Currently, most laws do not recognize relationships between unmarried couples for purposes of granting rights and benefits. For instance, tax policy allows only married couples to exempt dollars they spend on health insurance and unpaid medical costs. Unmarried couples enjoy no such financial benefit. At the same time, the law sometimes (mis)recognizes such couples in instances that will reduce or eliminate their benefits.
On its face the new FAFSA policy targets parents, not couples. But this new rule recognizesunmarried parents only for the purpose of withholding or reducing benefits, giving them a double whack since their relationships are not recognized when it comes to gaining benefits. Thus, these couples — who could use their income to finance tuition, fees, and other educational expenses related to their children — have relatively lower income than similarly situated married parents simply on account of their nonmarital status. This new policy, advocated by LGBTQ organizations, ultimately penalizes unmarried (and same-sex) parents just as do laws that do not recognize these couples (and to clarify, the rule targets only parents who live together to the exclusion of others).
When combined, these two practices — the nonrecognition of unmarried couples in the allocation of rights and benefits and the recognition of them in the calculation of student financial aid — result in a functional financial penalty to nonmarried couples. The net result is economic maldistribution. No law or policy can be judged “fair” or “unfair” without considering this fact.
LGBTQ organizations that applaud this change toward misrecognition, rather than condemn it, have somewhat blindly pursued their aims of cultural recognition, without considering the economic distributional effects of their lobbying. In the same week this new policy unfolded concerning student financial aid, we also learned that the overall poverty rate has increased within the LGBTQ community, and that same-sex couples are more likely to be poor than opposite-sex couples. LGBTQ organizations should consider the bottom line at the same time that they consider issues of recognition, and they should choose their battles carefully and in a way that helps mitigate systemic problems, rather than increases them. Cultural and legal recognition are important, of course; but we must ensure that our pursuit of these goals does not create or support policies that, quite frankly, take money out of the pockets of same-sex and unmarried couples in an inequitable way.
Fair redistribution of resources combined with recognition should be LGBTQ organizations’ platform. And as a society, we should demand the equitable distribution of resources and benefits for all families, regardless of how we choose to configure them. Doing so promotes our best means of winning true, deeply-rooted equality for the LGBTQ community and for unmarried partners.