Oglesby against the UN Pension Board: More than one thing wrong with this picture. 2 April 2019

There's more than one thing wrong with this picture.

OGLESBY AGAINST THE UNITED NATIONS JOINT STAFF PENSION BOARD

Case no. 20181208

(Hear the judgment at minutes 57 to 62 on the video, and/or read the unofficial transcript below).

Pronouncement of synopsis of UN Appeals Tribunal Judgments

QUOTE “The exclusion of Mr. Oglesby’s spouse from the benefit undoubtedly denies him the conventional advantages of a family life in which spouses work together to contribute to their financial security, and more generally, perpetuates harmful and hurtful stereotypes, that same-sex relationships are unworthy of the family oriented characteristics of marriage, namely consortium, companionship, and support. This is demeaning, and an invasion of dignity and equality. There is accordingly merit in Mr. Oglesby’s argument, but unfortunately the Appeals Tribunal has no remedial power to grant him the relief he seeks.”

QUESTIONS: What is the applicability of the following Fund regulation covering marriage after the date of separation from service? Did the UNAT address this very relevant issue? What is the obligation of the Fund to inform its members of its relevant Regulations? What are the options for redress in this case?

“If you are getting married after separation from service, there is no eligibility for a widow(er) benefit unless you elect to purchase an annuity within one year of the marriage (Article 35 ter of the Fund’s Regulations). Such election will be effective 18 months after the date of your marriage. For more information about the option to purchase an annuity for a spouse you married after separation from service, pleasecontact the Fund or check out our comprehensive booklet on Survivor’s Benefits.” (See link to the UNJSPB website below)."

Unofficial transcript:

Mr. Oglesby appeals against the decision of the Standing Committee of the United Nations Joint Staff Pension Board refusing to recognize his spouse as a prospective survivor for the purposes of a widower’s benefit under articles 34 and 35 of the Fund’s Regulations. Mr. Oglesby, a national of the United States of America, participated in the Fund for approximately twenty-five years. Upon his separation from service in 1998, Mr. Oglesby opted for a reduced early retirement benefit  under Article 29 of the Regulations.

At the time of his separation from service, Mr. Oglesby was unmarried but in a same-sex relationship.  On 23 April 2018, twenty years after his separation from service and after they had lived together continuously for thirty-six years, Mr. Oglesby married his partner in New York. Same-sex marriage only became lawful in New York in 2015. Under the expressed terms of Articles 34 and 35, Mr. Oglesby’s spouse is not entitled to a survivor’s benefit. At the time he separated from service, Mr. Oglesby was not married, and his same-sex relationship at that time did not enjoy similar status to marriage under the law of the United States. Moreover, the Fund’s extended concept of marriage to include same sex relationships, adopted by the Pension Board in 2016, does not apply retrospectively. 

Mr. Oglesby’s contentions, however, go beyond a claim to benefit under Articles 34 and 35 of the Regulations. He argues that the provisions of Articles 34 and 35 restricting his entitlement are inconsistent with the Charter of the United Nations and that he should be afforded relief on that basis. The universal principle of nondiscrimination in article 8 of the Charter and Article 7 of the Universal Declaration of Human Rights prohibits unfair discrimination on illegitimate grounds including sexual orientation and marital status. Mr. Oglesby submits that articles 34 and 35 of the Regulations unfairly discriminated against persons in same-sex relationships. Had his relationship been heterosexual, there would have been no legal obstacle to marriage and his spouse would have qualified for a spousal benefit at some time in the future.

The exclusion of Mr. Oglesby’s spouse from the benefit undoubtedly denies him the conventional advantages of a family life in which spouses work together to contribute to their financial security, and more generally, perpetuates harmful and hurtful stereotypes, that same-sex relationships are unworthy of the family oriented characteristics of marriage, namely consortium, companionship, and support. This is demeaning, and an invasion of dignity and equality. There is accordingly merit in Mr. Oglesby’s argument, but unfortunately the Appeals Tribunal has no remedial power to grant him the relief he seeks. The Appeals Tribunal does not have the prerogative to apply the Charter directly, nor the power to strike down internal or subsidiary legislative provisions inconsistent with the norms it enacts.  The jurisdiction of the Appeals Tribunal is restricted by Article 2, Subarticle 9 of the UNAT statute to determine whether there has been non-observance of the regulations. The Fund has acted in keeping with its Regulations. If there is indeed any enduring discrimination on the grounds of sexual orientation inconsistent with the Charter that is a matter for the Secretary-General or the General Assembly. In the premises, the appeal regrettably must fail. The appeal is dismissed and the decision of the Standing Committee is affirmed.

http://webtv.un.org/watch/pronouncement-of-synopsis-of-un-appeals-tribunal-judgments/6020079678001/http://webtv.un.org/watch/pronouncement-of-synopsis-of-un-appeals-tribunal-judgments/6020079678001/

https://www.unjspf.org/help-tutorials/frequently-asked-questions-faqs/faq-beneficiaries/https://www.unjspf.org/help-tutorials/frequently-asked-questions-faqs/faq-beneficiaries/