The Tough Fight for Compensation

September 11 Fund closes, with fate of gay and lesbian survivors unclear

On June 15, the September 11 Victim Compensation Fund was closed. The compensation fund had been created by Congress as part of a $15 billion bailout of the airline industry, hard-hit by the aftershocks from the terrorist attack, to give compensatory funds to the spouses and families of those who perished in the September 11 terrorist attacks in return for their agreement not to pursue additional claims.

The minimum award given to claimants was $250,000, and the average was about $1.8 million.

“Over 98 percent of eligible families who lost a loved one voluntarily decided to participate and submitted claims to the Fund…This overwhelming participation demonstrates, I believe, the fairness and generosity of the Program,” wrote Kenneth R. Feinberg, special master of the Fund.

But some of the 24 openly lesbian or gay surviving partners of women and men who perished in the 9-11 attacks on the World Trade Center and the Pentagon feel differently, according to sources familiar with the confidential outcome of claims cases.

Although Feinberg announced in May 2002 that gay and lesbian domestic partners would be considered for benefit payments, those decisions were made on a case-by-case basis and their success was heavily dependent on the cooperation of the victim’s biological or legal family.

“If the next of kin is supportive and there’s no dispute, it’s a non-issue,” Feinberg told The New York Times when he made his announcement. “If the personal representative, say a parent, comes to me and says ‘Cut a check for the same-sex partner,’ there will be no problem. Then it is a ministerial function. What do I care?”

There were, in fact, several cases in which surviving partners were not on good terms with the relatives of their deceased loved ones.

“A number of families turned their backs on their son’s or daughter’s lover,” said Joe Tarver of the Empire State Pride Agenda (ESPA), which worked with surviving partners in New York State. Issues of confidentiality prohibited the Pride Agenda from releasing the formal details of individual cases.

Keith Bradkowski, a registered nurse living in San Francisco at the time of the attacks, was one of the more fortunate ones. Bradkowski, who lost his partner of 11 years, Jeffrey Collman, a flight attendant on the American Airlines jet that hit one of the Twin Towers, had the support and cooperation of Collman’s family.

“I had a relationship that was worked out with his parents,” said Bradkowski, adding that “we received the [compensation] letter a few weeks ago.”

He also had state legislation on his side. Congress based eligibility for the Compensation Fund on the inheritance rights of individual states. If a surviving partner was fortunate to reside in a state in which domestic partners were recognized in matters pertaining to survivor benefits, then his or her case was that much stronger. It was also crucial in such situations that the couple had established themselves as legal domestic partners.

If not, said Brankowski, the claimant had “no protections whatsoever and was totally shut out from collecting anything from the Victim Compensation Fund. That’s the way that Congress created the thing.”

As registered domestic partners in the state of California, Bradkowski qualified to receive benefits from the Compensation Fund.

“Different people had different legal tools to work with,” said Jennifer Pizer, senior staff attorney in the West Coast regional office of Lambda Legal Defense and Education Fund, which represented some of the surviving partners, including Bradkowski.

“California state law had a provision for wrongful death [benefits] for domestic partners,” said Pizer. “Most survivors lived in states where that was not true.”

A number of developments in state legislation and the policies of major relief organizations like the American Red Cross made a significant difference to some survivors who might not have been as successful with their case before the Victim Compensation Fund.

In New York State, for instance, a law that took effect on August 21, 2002 allowed gay and lesbian survivors of 9-11 to receive “spousal benefits” from insurance companies providing workmen’s compensation policies to the employers of their late partners. The change in state law followed a claim made by Larry Courtney against the New York State Workmen’s Compensation Board for spousal benefits in connection with the death of his partner Eugene Clark, who was at work at Aon Consulting on the 102nd floor of Two World Trade Center on September 11. Courtney, who was represented in his action by Lambda Legal, emphasized that that he and Clark had taken advantage of every legal protection afforded gay couples under New York law to protect their relationships––including registering as domestic partners in New York City, living together, and designating each other as heirs and health insurance and pension beneficiaries. Courtney and Clark had been together for 14 years.

A November 2002 decision from the Compensation Board, issued after the change in law, found in Courtney’s favor, though it did not rely on the new statute. Instead, it cited the 14-year union of the couple and noted that “the term ‘spouse’ is not specifically defined in New York State Workers’ Compensation Law to only mean the opposite sex partner in marriage.” Significantly, however, at about the same time the Board ruled against a similar claim made by William Valentine, who lost his partner of 21 years, Joseph Lopes, an American Airlines flight attendant, when a Dominican Republic-bound flight crashed after takeoff from Kennedy Airport November 12, 2001.

In the fall of 2001, under pressure from gay and lesbian rights organizations and New York City elected officials, the American Red Cross extended benefits to same-sex surviving partners of the tragedy.

Smaller compensatory funds were also set up to specifically serve the gay and lesbian survivors, such as one in the amount of $141,000 established by ESPA, Lambda Legal, and the New York City Gay and Lesbian Anti-Violence Project. Applicants received amounts of between $4,000 and $6,000.

Activists say that the experience of surviving partners of 9/11 victims sharply underscores the need to push for same-sex marriage rights nationally.

“It all points back to the importance of being able to get married,” said ESPA’s Tarver. “There are 1,800 rights and responsibilities that come with marriage. You can hire the best attorney in the world [as a non-married person] and you can only get about six or seven of those rights and responsibilities”

Civil unions or domestic partnerships “can be useful to surviving partners where 401Ks, household possessions, individually or jointly owned possessions are under dispute,” said Pizer. “But [they] don’t meet all needs and September 11 showed us all that.”

Bradkowski, a longtime resident of the San Francisco Bay area, has recently taken up residence in Tucson, Ariz.

“It’s been almost three years and there’s not a minute of a day that I don’t miss my partner,” he said.

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