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June 18, 2015

Married Same-Sex Couples File Preliminary Injunction against Social Security in Class Action Lawsuit

Gay & Lesbian Advocates & Defenders (GLAD), Justice in Aging, and Foley Hoag LLP filed a motion for a preliminary injunction against the Social Security Administration (SSA) yesterday (June 17) . As the country awaits an historic Supreme Court decision in Obergefell v. Hodges that could bring marriage equality to all states, same-sex couples who are already married and living in poverty have faced extreme financial hardship because of discriminatory actions by the Social Security Administration. The parties seek to permanently stop SSA from withholding or otherwise pursuing funds from Supplemental Security Income (SSI) recipients whose same-sex marriages the agency failed to recognize after the demise of the Defense of Marriage Act (DOMA). 

The filing is the next step in Held v. Colvin, a class action lawsuit filed on March 10, 2015. Well after June 2013, SSA did not recognize the marriages of same-sex couples, even in cases where SSI recipients informed SSA that they were married.  SSA continued to issue benefits as if the married individuals were single. This resulted in higher payments than they would have received if their marriage were taken into account. SSA has been demanding that recipients refund the benefits they were paid as a result of the discrimination.

After the filing of Held, SSA issued an emergency directive instructing field SSI employees to put a stop to the practice going forward, but the solution is temporary.

“The agency’s directive was welcome, but inadequate,” said Gerald McIntyre, Directing Attorney for Justice in Aging. “Though SSA appears to recognize that its actions have been harmful, it continues to hold the threat of future overpayment notices over an entire class.”

GLAD, Justice in Aging and Foley Hoag LLP are representing Kelley Richardson-Wright of Athol, Massachusetts, who is married to Kena Richardson-Wright; and Hugh Held of Los Angeles, who is married to Orion Masters.  Both Ms. Richardson-Wright and Mr. Held have been subject to extreme financial harm as a result of SSA’s discrimination.

“The emergency action doesn’t do anything to help people who have already received a notice of overpayment, or for those from whom SSA is withholding money from already small checks,” said Vickie Henry, Senior Staff Attorney for GLAD.  “Until the Social Security Administration waives overpayments or the courts order that they waive overpayments, the action only delays the date of reckoning and if anything allows harm and uncertainty to mount.”

Also, on Tuesday (June 16) plaintiffs also filed a motion for class certification. According to SSA’s most recent statistical snapshot, 8.3 million people were receiving SSI benefits as of April 2015.  Given that an estimated 3.5% of the population is lesbian, gay, or bisexual, and that the poverty rate in that community is higher than average, there are likely to be as many as a thousand putative class members.

“Given the nature of this class – elderly or disabled people living below the poverty level and scattered across the country– the likelihood of them having the means to file individual lawsuits is low,” said McIntyre.

The motions, which were filed in U.S. District Court for the Central District of California in Los Angeles, along with the complaint, can be read at

In addition to attorneys Henry and McIntyre, the plaintiffs are being represented by Mary L. Bonauto of GLAD, Denny Chan and Anna Rich of Justice in Aging, and Claire Laporte, Marco Quina, Catherine Deneke, and Stephen T. Bychowski of the law firm Foley Hoag, LLP.  Foley Hoag previously partnered with GLAD on its challenges to the Defense of Marriage Act.