W000431
November 16, 2001
September 11 Victim Compensation Fund of 2001
The Empire State Pride Agenda is New York's statewide, non partisan gay and lesbian civil rights and
political advocacy organization, representing over 25,000 members. In response to the numerous calls
we have received from lesbian and gay New Yorkers touched by the brutal attacks of September 11,
we are submitting comments on the Victim Compensation fund in a solemn effort to ensure that all
victims receive fair treatment by our government. We urge that the Fund be administered in a way that
ensures that all family members who have lost the support of a loved one are entitled to full and fair
compensation for their losses, without regard to the sexual orientation of the victim of this tragedy.
Just as those who died in the World Trade Center spanned all races, creeds, and colors, the tragedy
touched lesbian and gay families as well as heterosexual families. Indeed, one of the heroes of
September 11 on board United flight , , was a gay man. Inevitably, with over 92,000 people
in New York alone identifying on the U.S. census as members of same sex households, many of the
lesbian and gay victims of September 11 are survived by longtime partners. lost his partner of 17
years, , a project analyst at with whom he shared a Yonkers home.
lost her partner , an assistant Vice President for accounting at on the 92nd floor of One
World Trade. became separated from his 18-year companion, , as the two fled the
falling debris side-by-side; did not learn until two days later that , had been killed as the towers tumbled around them.
The need for support and recompense is no less real for these lesbian and gay survivors than it is for the
countless other relatives who lost loved ones. America has reached out with enormous generosity to all
of the victims because our common humanity recognizes that grief and loss are not reserved to any
single culture or group-they are borne by each and every one of us, whatever our race, religion, or sexual orientation.
The laudable purpose of the September 11th Fund is set forth clearly in the legislation that created it; to
provide compensation for the losses of relatives of those who died, and those who were injured. See Title IV of the Air Transportation and System Stabilization Act, sec. 403. It is crucial for the many
deserving relatives, including the committed partners of gay and lesbian victims of the terror attacks and
their non-biological children who though not legally adopted were nonetheless raised by the victims as their own. Because these families are based on relationships that do not meet strict, traditional legal
definitions, the enormity of the loss of a beloved companion or parent could be compounded by the prospect of ineligibility for compensation intended for their protection. The Fund should not operate
under such an inequity, but should include among relatives eligible for compensation those who lost their life partners or non-biological parents, regardless of sexual orientation and marital status.
The potential for unfairness is particularly high in the issues surrounding the "personal representative" of an eligible decedent's claim. The questions of who is eligible to be a "personal presentative" on behalf of a qualified decedent, whether a domestic partner will be considered a "survivor" who must be notified by a "personal representative," who among multiple claimants will be designated the appropriate "personal representative," and whether state law should be applied to determine the identity of a "personal representative" all involve whether the interdependent relationship between two persons of the same sex is to be given legal standing in this context.
Our assertion, based both on the law that would be applied in the vast majority of legal claims resulting from the events of September 11th, and on the equitable concept of fundamental fairness, is that surviving domestic partners of victims should be recognized as legitimate beneficiaries of the September 11th Victim Compensation Fund.
In many areas, New York State law already recognizes that an array of people come together to form
families that are emotionally and financially interdependent, and the law has been taking affirmative steps
to protect those who face peril when a family member perishes. These court rulings, laws, and
executive orders deserve special consideration and carry special weight if the Fund is to live up to its
purpose as a viable alternative to litigation, since the vast majority of the victims of the September 11
attacks were killed in New York, and New York law will apply in compensation litigation for those
victims.
Just a few weeks ago, Governor Pataki issued an Executive Order granting surviving partners of the
World Trade Center attacks comparable benefits to those received by surviving spouses from the
state's Crime Victim Board. (The board receives a large proportion of its compensation funds from the
Department of Justice's Office for Victims of Crime.) Under the order, the Crime Victims Board will
use criteria similar to those used in granting health benefits to the domestic partners of state employees,
discussed below.
That Executive Order follows the example set as early as 1989 by New York's highest court, which
has defined "family" to embrace the diverse family structures that play vital roles in the state and to
protect life partners of rent-controlled tenants. In Braschi v. Stahl Associates, 74 N.Y.2d 201 (1989),
the Court of Appeals held that government protection when a loved on dies "should not rest on fictitious
legal distinctions or genetic history, but instead should find its foundation in the reality of family life." Id. at 211. Braschi held that in addition to the traditional definitions of family, "a more realistic and certainly
equally valid, view of family includes two adult lifetime partners whose relationship is long term and
characterized by an emotional and financial commitment and interdependence." Id. The definition of
family the Court formulated is now codified in New York administrative regulations at 9 N.Y.C.R.R.
2104.6(d)(3). By incorporating factors like longevity of the relationship, formalization of responsibilities
toward one another, and mutual, day-to-day care for one another as well as extended family, it offers a
workable standard for ensuring that only genuine family members in need of relief are eligible
beneficiaries.
In 1995, New York State extended domestic partner health benefits to state employees, and
established criteria that follow the sprit of Braschi to judge when two unmarried individuals are involved
in a committed and interdependent relationship. The judicial and legislative branches have since
followed suit so that all New York State public employees are now eligible for domestic partner
benefits. New York City also has a long history of fair treatment for all families, beginning in 1989
when city employees with domestic partners were granted bereavement leave benefits, Several
additional measures followed, culminating in a 1998 law introduced by Mayor Giuliani granting partners
equal rights and responsibilities to spouses in all areas under City jurisdiction.
Those who died here in an attack on our nation deserve no less from their federal government, and
clearly the survivors will settle for no less. Because New York has in so many contexts taken a
realistic, expansive view of family, survivors are likely to choose New York litigation as a means for
compensation over a federal fund that uses a more restrictive approach. Whatever the final outcome,
the issue of whether a domestic partner and non-biological children are eligible for damages in a
wrongful death suit brought under New York law will certainly not be dismissed out of hand.
Therefore, if the Victim Compensation Fund is to serve one of its purposes of protecting airlines from
costly litigation, it must reflect New York's inclusive definition of family.
Our nation has come together in this time of tragedy to lend its unqualified support to all the innocent
victims of the attacks. We must stand united to fulfill our moral obligation to all those harmed by this
tragedy,. We therefore believe that the following principles should guide the implementation of the
September 11th Victim Compensation Fund:
1. A partner who lived with a victim in a committed and mutually interdependent relationship, and any
non-biological children dependent upon the victim, both as defined according to time-tested criteria
followed in New York, should be eligible for compensation, be considered survivors and qualified to
serve as "personal representatives: on behalf of victims.
2. The Victim Compensation Fund should compensate the losses of such family members who might otherwise be left without avenues for relief under the restrictive approach of traditional intestate succession and wrongful death principles.
Ensuring that same-sex partners and the non-biological children of victims receive compensation will permit the Fund to be distributed with basic equality and fairness to all those in need. Fairness also
dictates that since lesbian and gay Americans have contributed their tax dollars to the Fund on the same basis as their neighbors, they should not be denied equal access to its benefits. Equally important,
administering the fund in a manner that qualifies all American families for relief upholds the fundamental values of liberty and quality cherished by all Americans that we are currently fighting to defend.
Empire State Pride Agenda
New York, New York