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Partners of Sept. 11 Victims Denied Compensation

Saturday, January 19, 2002

Since the death of Peggy Neff's partner in the terrorist attack on the Pentagon, Neff and other gay partners of victims have found themselves fighting for recognition and compensation.

Subhead: 
Since the death of Peggy Neff's partner in the terrorist attack on the Pentagon, Neff and other gay partners of victims have found themselves fighting for recognition and compensation.



Sheila Hein and Peggy Neff

(WOMENSENEWS)--"I feel like I've just come right out of a closet and over a cliff," Peggy Neff says of her life since Sept. 11.

Before that day, Neff was quietly studying for her real estate examination, in the Hyattsville, Md., home she shared with Sheila Hein, her partner of over 17 years. "I'd just given notice at my job," she says, intending to rely on the income of her partner, a former Army photographer in a civilian job at the Pentagon, to cover the bills while she built her business.

Neff preferred to keep her private life, well, private: "I never wanted to be political." But when the plane hit the Pentagon on Sept. 11, killing Hein, Neff's world changed forever.

Since then, she's made headlines. When denied compensation by Virginia's Criminal Injuries Compensation Fund, she meet with representatives of national gay and lesbian rights organizations, and is now negotiating with Kenneth Feinberg, an appointee of Attorney General John Ashcroft who is administering the federal September 11 Victim Compensation Fund. Her case is being cited by lawyers working to ensure that same-sex domestic partners of Sept. 11 victims have the same rights as those in heterosexual marriages.

The September 11 Victim Compensation Fund was set up shortly after the disaster as part of the law called Air Transportation Safety and System Stabilization Act, and the fund is designated to compensate the "spouses, children, and other relatives" of those killed in the attacks. The fund is to use a formula that includes a flat fee for "pain and suffering" and the presumed lost income of the deceased, based on their earning capacity. In order to be eligible for the funds, claimants must waive their legal right to sue the U.S. government. The interim rules have come under fire for the proposed aid formulas, which would reduce awards to survivors who have already received life insurance or substantial post-Sept. 11 aid from other agencies.

For Neff and the two dozen other lesbian and gay survivors who have come forward, the issue is whether they will be recognized as "spouses." As executor of her partner's estate, Neff qualifies as the "personal representative" as defined by the law, but the law goes on to state that personal representatives are mandated to distribute the funds to the "spouse, children or other relatives." Thus Neff could receive the funds and be directed to give them to Hein's mother.

The final rules will be published on Tuesday. It is not known if the Justice Department will include specific recognition of relationships such as the one enjoyed by Peggy Neff and Sheila Hein. While the State of New York has agreed to recognize same-sex partners, the state of Virginia has not, leaving Pentagon survivors such as Neff behind.

Pair Met After Military Service

Between the two of them, Hein and Neff served more than 10 years in the military, both as photographers for the U.S. Navy. In those days, she says, "don't ask, don't tell" wasn't yet the rule: "It was more like 'Don't even hint.'" They didn't meet until after their tours of duty, when Neff was complaining about her first post-military job in 1983. "I said, 'They don't pay me enough,' and she said 'Come on over to this side, and we'll pay you enough.' The rest is history."

Within six months, they'd moved in together. Over the years they bought a house together and took most of the legal steps needed to obtain rights analogous to heterosexual married couples, securing powers of attorney for health care and making Hein the beneficiary on Neff's life insurance. Most critically, they made out simple wills, naming one another sole inheritor and executor of the other's estate. "That's my saving grace now," Neff says.

Hein's will is what separates Neff from many of the same-sex domestic partners now seeking help after Sept. 11, says Jennifer Middleton staff attorney of the Lambda Legal Defense and Education Fund, which is working with over a dozen such survivors. "Peggy Neff is in a decent position because she's the executor of her partner's estate," Middleton says. "But that doesn't mean at the end of the day that she'll get the money."

It didn't, for example, mean that she was able to get immediate death benefits from the State of Virginia, which told her in a letter: "We regret to inform you that you are not eligible to file a claim for benefits under the Virginia Victims of Crime Act." Unlike New York state, where Governor George M. Pataki issued an executive order declaring that same-sex domestic partners have the same rights as other spouses who lost loved ones on Sept. 11, Virginia's then-Gov. Jim Gilmore was unresponsive to appeals on Neff's behalf. "A few courts have begun to see that marriage-based distinctions discriminate against same-sex couples," says Lambda's Middleton. "Virginia isn't there yet."

Pataki's order was necessary because New York isn't there yet either. A 1997 court decision explicitly declared same-sex partners different from married spouses under the terms of the Crime Victims Fund. Pataki's order, however, declared gay partners equal to heterosexual widows and widowers for the purposes of compensation related to Sept. 11 and modified future requirements so that partners of crime victims no longer have to show that the partner--including unmarried domestic partners--provided 75 percent of family income. "Married people don't have to show any percentage," says Joe Tarvo of Empire State Pride Agenda, which worked with Pataki on his executive order. "For September 11, neither do domestic partners."

Special Master Feinberg Has Enormous Discretion

Although Virginia now has a new governor, Mark Warner, Neff is not interested in pursuing her case with the state any further. She's concentrating on her upcoming, crucial meetings with Feinberg, the overseer of the federal Victim Compensation Fund. Feinberg is a surprising appointee for John Ashcroft; he was a legislative assistant to U.S. Sen. Edward Kennedy in the late 1970s and helped move forward several high-profile legal cases, the asbestos cases, the Dalkon Shield and Shoreham class-action lawsuits among them And Neff has complete faith in Feinberg: "He's the right one to head this committee, regardless of how my situation turns out."

The interim rules for the federal fund "provide for some discretion on the part of the hearing officers, but the rules are not as explicit regarding same-sex partners as we would like," says Lambda's Middleton. Lambda is pressing until the last minute for changes, while Chris Smith of the Human Rights Campaign, which has worked with Neff most closely, says simply, "We have hopes for the enormous amount of discretion given to" Feinberg.

Neff, however, is not waiting to see what the rules say: She's working on getting the most convincing package possible to present to Feinberg. Her task, as she sees it, is to convince Feinberg that after 17 years with Hein, "She really was the love of my life--and I was a spouse." The difference in benefits, she says, is about $400,000; the difference in recognition of her relationship is immeasurable.

In the meantime, although she's not yet ready to become an activist for recognition of gay partnerships, Neff has found herself a national figure in a movement she's been wary to enter. She's been invited to San Francisco by the National Center for Lesbian Rights, where she plans to talk about the absolute necessity for lesbians to take action to protect their relationships. "I'm becoming a one-note band," she says. "This is my new job: to tell people, 'Make a will!'"

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Chris Lombardi is a free-lance writer in New York. She coordinated Women's Enews Fall 2000 election coverage and helped cover the Beijing + 5 conference on women. Her work has been published in Ms. Magazine, the Progressive and Inside MS.