How same-sex marriage law affects district employment practices

The last few years have seen a significant shift throughout the country in laws relating to same-sex marriage. In 2013, the United States Supreme Court established the right to same-sex marriage for purposes of federal law, such as income tax laws [United States v. Windsor, 570 U.S. __ (2013)]. But the rights of same-sex spouses still depended on whether individuals were legally married under the laws of the state in which they resided. In June of this year, the Supreme Court held that states must recognize marriage between two people of the same sex [Obergefell v. Hodges, 576 U.S. __ (2015)]. Texas officials must now issue marriage licenses to same-sex couples. In addition, state and political subdivisions must recognize same-sex marriages performed here and in other states. 
For human resource professionals, the ruling in Obergefell means school districts must recognize the same-sex marriages of their employees. On a practical level, this means making employee benefits available on the same basis to employees in same-sex marriages as to employees in opposite-sex marriages. 

Limited policy implications

Few, if any, policy changes will be required in response to these decisions because most districts use the neutral term spouse in local policy and administrative materials. A terminology update is appropriate if gender-specific terms are used in a manner that might be interpreted as hostile to same-sex couples. For example, district materials that refer to a “husband’s” ability to take leave to care for “his” pregnant wife could be amended to refer to an “employee’s” ability to take leave to care for “the employee’s” pregnant spouse.
The TASB HR Services’ Model Employee Handbook for the 2015‒16 school year has been updated with gender-neutral terms. TASB Policy DECA (LEGAL) will be updated with gender neutral terms in Update 103.

Benefits implications

Health insurance. Districts must allow employees to enroll their same-sex spouses in health insurance benefits under the same terms as opposite-sex spouses. TRS has amended the eligibility criteria for enrollment in TRS-ActiveCare to comply with the Obergefell decision. Effective with the open-enrollment period for the 2015‒16 plan year, employees may enroll their same-sex spouses and other dependents in health insurance coverage. Details are available on the TRS Website.
Districts that do not participate in TRS ActiveCare should review their plan documents to ensure that same-sex spouses are eligible to enroll. In addition, some districts may need to conduct a special enrollment event so that employees can enroll same-sex spouses between now and the next open enrollment period.
Retirement. Since the Windsor decision, a qualified retirement plan has been required to treat a same-sex spouse as a spouse for the purpose federal tax laws relating to qualified retirement plans (see the Internal Revenue Service document Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law). For the most part, retirement benefits for school district employees are handled by TRS and TRS is responsible for ensuring that the plan complies with federal law. However, districts that offer supplemental or alternative retirement benefits, such as 403(b) or 401(k) programs, should ensure that they treat married same-sex partners as spouses under these programs. 
Leaves of absence. In March 2015, the Department of Labor issued new regulations defining “spouse” for purposes of the Family and Medical Leave Act (FMLA). Questions were raised about the applicability to these regulations in states such as Texas that did not recognize same-sex marriage. The Obergefell decision resolved any lingering doubts: Employees in same-sex marriages have the same FMLA leave rights as employees in opposite-sex marriages.
Eligible employees in Texas are now entitled to:
  • Take FMLA leave to care for a same-sex spouse with a serious health condition
  • Take qualifying exigency leave due to a same-sex spouse’s covered military service
  • Take military caregiver leave for a same-sex spouse
  • Take FMLA leave to care for a stepchild (child of employee’s same-sex spouse) regardless of whether the employee meets the in loco parentis requirement of providing day-to-day care or financial support
  • Take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee
State or local leave that is available to an employee based on a marriage relationship now applies equally to same-sex spouses. Most districts defined “immediate family,” for purposes of state and local leave, to include the employee’s spouse. Leave that is available to an employee based on a marriage relationship will vary by district. Consult district policy (DEC(LOCAL)) to determine which forms of leave may be implicated.


Districts should treat same-sex marriage the same as other marriages for purposes of documentation requirements. If the district does not normally ask for documentation of opposite-sex marriages, the district should not require documentation of same-sex marriages. Remember that Texas recognizes common law marriage. Under the Obergefell decision, the rules on common law marriage apply to same-sex marriages.

Religious objections

Same-sex marriage may evoke strong feelings among district staff, including religious objections to the notion that individuals of the same sex may legally marry. Employees may cite an objection to same-sex marriage as justification for refusing to carry out a job duty, such as processing a leave request or health benefits. 
The state’s Religious Freedom Restoration Act (RFRA) protects free exercise of religion, defined as “an act or refusal to act that is substantially motivated by sincere religious belief.” The RFRA also prohibits a government employer, such as a school district, from substantially burdening an employee’s free exercise of religion unless the burden is the least restrictive way of furthering a compelling governmental interest. In addition, Title VII requires a covered employer to make reasonable accommodations for the religious beliefs of employees.
District officials should approach requests for religious accommodations with an open mind and seek to achieve a mutually acceptable solution. Before denying a request for a religious accommodation, districts should seek legal advice from the district’s attorney.

Limited changes required

Texas school districts will have to change to accommodate the rights of employees in same-sex marriages. Fortunately, only limited changes are required to policies and benefit plans. Most of the required changes will involve changes to processes and procedures.