Fighting Arizonas New Policy of Unequal Access
FROM OF COUNSEL VOL. 5, NO. 5 (DECEMBER 2009)
Arizona's legislature has stripped lesbian and gay state employees of domestic partner coverage. Staff Attorney Tara Borelli writes about why this is a mean-spirited move against employees' families and why Lambda Legal is suing to restore fair treatment.
On September 4, 2009 the state of Arizona took a profoundly distressing step backward in the treatment of its lesbian and gay employees by eliminating state workers' domestic partner health benefits. Arizona's lesbian and gay government workers had come to rely on these benefits as a valuable part of their compensation and an important way to safeguard their families after the benefits were first provided in the fall of 2008 under the administration of former Arizona Governor Janet Napolitano.
The benefits were part of measured, important progress Arizona had made on behalf of lesbian and gay public employees under Governor Napolitano's leadership, which also included a 2003 executive order prohibiting sexual orientation discrimination in public employment. When anti-gay groups sued in 2003 to invalidate that order, Lambda Legal helped persuade Arizona’s Supreme Court to reject the case, allowing the executive order to stand.
This summer, after Napolitano departed to become Secretary of Homeland Security and was succeeded by Governor Jan Brewer, the legislature took aim at domestic partner health benefits. While our nation was in the grips of an intense debate about improving health care access for more of our country's uninsured, the Arizona legislature cruelly tossed its lesbian and gay employees' partners off its health insurance rolls and enshrined this policy of discrimination in state statute. Lambda Legal monitored the state legislature's several attempts to eliminate domestic partner health benefits during the summer, and stepped up to prepare a suit after the legislature enacted a budget bill in August of 2009 that stripped lesbian and gay workers of these critically needed benefits.
At its core, this is an issue of equal compensation: After decades of loyal and dedicated service, Arizona's lesbian and gay state employees were rewarded with what was in essence a discriminatory pay cut as the legislature voted to withhold the valuable partner benefits portion of their compensation. This was done without, of course, reducing their workloads compared to those of their married heterosexual colleagues.
Arizona officials could not enforce the cutoff immediately without infringing on the vested rights of employees who had just enrolled for a new benefits-plan year. But officials have made it clear they intend to enforce the law when the plan year ends, causing Arizona state employees like our plaintiffs to face the extreme stress of losing urgently needed coverage.
Lambda Legal filed Collins v. Brewer, suing on behalf of 10 government employees who have, among other duties, protected the public as law enforcement officers or educated our best and brightest in Arizona's universities. Their families' circumstances represent some of the terrible harms that lesbian and gay state employees will face without domestic partner health benefits.
Take our lead plaintiff, Tracy Collins, a senior highway patrol officer for the Arizona Department of Public Safety. Collins, who previously served the country as a U.S. Air Force Reservist, helped to raise two beautiful daughters and their nephew with her beloved partner of over 10 years, Diana. When Diana developed a debilitating pain condition in 1999 that left her bedridden for the next five years, Tracy cared for her and supported the family until Diana was fully recovered seven years later. Because Diana did not have access to health insurance for the first two years of her illness, the cost of her medical care quickly overwhelmed the family's finances, and Tracy was forced to seek relief in bankruptcy court. Diana's current job does not offer health benefits, so it was an enormous relief to the couple when domestic partner benefits became available through Tracy's employment in 2008. If they lose domestic partner health benefits for Diana, they will have no choice but to hope that Diana's previous condition does not recur, and to purchase the blood pressure prescription medication she also needs out-of-pocket, a burden the family can ill afford as they attempt to rebuild their finances.
Our plaintiff Keith Humphrey also knows the acute stress of losing coverage. Keith is assistant vice president for student affairs and a faculty member at the University of Arizona. Keith's partner of eight years, Brett Klay, left his job as a factory foreman when the couple decided to welcome into their family the first of their two medically fragile foster children, who need extensive physical and emotional care. Brett was diagnosed over the summer with a torn carotid artery. Losing the health insurance that allows Brett to access medical appointments, monitoring scans and medication to prevent a potentially fatal blood clot is a terrifying prospect for the couple.
Lambda Legal's other clients in the case face a range of anxiety-provoking circumstances, from losing coverage for their young children to losing coverage for a partner with a pre-existing condition that renders him or her uninsurable at any price on the private market, including, for example, diabetes, glaucoma and asthma.
This is not the first time Lambda Legal has tangled with government employers intent on singling out gay and lesbian employees for discriminatory treatment. The equal protection theory Lambda Legal is advancing in this case first succeeded in Tanner v. Oregon Health Sciences University, a 1998 Oregon Court of Appeals victory for Oregon public employees. Lambda Legal co-authored a friend-of-the-court brief in the Tanner case, presenting social science evidence that domestic partner health benefits are not disproportionately expensive, but rather are sound fiscal policy that allows employers to recruit and retain top talent, and to improve employee morale and productivity. Employees are healthier and happier when they are not forced to worry that without coverage, a loved one's accident or serious illness could force their household to the brink of financial ruin. Lambda Legal supported cases in Alaska and Montana with similar friend-of-the-court briefs, helping to secure domestic partner health benefits victories in those states in 2005. Most recently, Lambda Legal represented Washington firefighter paramedics and a 911 dispatcher in deGroen v. City of Bellevue, securing benefits for domestic partners of Bellevue, Washington employees in 2007, and shortly thereafter secured similar coverage based on similar legal claims for municipal employees of Redmond, Washington.
While these prior cases were filed in state court, Lambda Legal adopted a new strategy for Collins v. Brewer. With our co-counsel at the law firm of Perkins Coie Brown & Bain, P.A., Lambda Legal filed Collins in the federal District Court in Arizona. Our suit claims that if state officials strip domestic partner health benefits from lesbian and gay government workers, they violate the federal constitution’s promises that 1) the government will treat similarly situated people equally, and 2) it will not punish people for exercising their fundamental right to a private, intimate relationship with a same-sex partner, which Lambda Legal established nationally in Lawrence v. Texas.
After careful research and consideration, we decided to bring this case in federal court because the federal landscape continues to shift in promising ways. Federal policymakers are having an unprecedented conversation about extending domestic partner health benefits to federal employees, advanced by the Obama administration’s strong support for a pending federal bill that would extend these benefits. The federal courts are also being asked to decide other momentous questions about the rights of same-sex couples, including a case filed by private attorneys in a California federal court seeking to allow same-sex couples to marry in California. This case will be heard by the same federal Court of Appeals that would consider our case on appeal. We believe there is a powerful, straightforward and compelling argument that constitutional guarantees, at federal and state levels, require this basic and modest measure of equal treatment for lesbian and gay public employees.
We are prepared to build the record to support our case and confident about our position because the arguments that intransigent employers raise to defend discriminatory health benefits policies often are the same: They claim restrictions save money and reduce fraud. As Lambda Legal has argued in briefs before, a significant body of mainstream, nonpartisan, empirical literature exposes these excuses as flimsy and unsupported. Perhaps most importantly – and as other state courts have accepted – our constitution’s guarantee of equal treatment makes it impermissible to balance the state budget on the backs of a small, politically vulnerable group of public workers. The government can no more achieve cost savings by denying partner health benefits to lesbian and gay employees than it can by, for example, reducing the pay of female public employees, or denying health benefits for the spouses of Jewish public employees.
Lambda Legal's work on Collins v. Brewer stands at the intersection of work Lambda Legal has done to advance workplace fairness, relationship recognition and health care fairness. A lack of access to marriage systematically reduces the ability of workers with a same-sex life partner to obtain health coverage for family members through their employment. While many businesses offer domestic partner benefits to create parity among heterosexual and gay employees, far too many lesbian and gay employees still lack access to such benefits. The implications for LGBT people are profound. Research shows that a lack of coverage through a life partner’s employment is one of several factors contributing to poorer health outcomes in the LGBT community as a whole. This disparity is one of several reasons that Lambda Legal launched a national campaign to advance health care fairness for LGBT people.
The unequal treatment of the families of Tracy, Keith, and our other plaintiffs in Collins v. Brewer is a painful reminder of their vulnerability in the absence of the relationship recognition their heterosexual married co-workers receive. Lambda Legal will continue its work to secure equal treatment in health benefits through this case and others, moving the community closer to a day when health care access is not rationed according to sexual orientation or gender identity.