A San Diego lesbian woman denied fertility treatment in the summer of 2000 by a local medical group after 11 months of preparatory treatment, brings her case to trial April 9. After Drs. Christine Brody and Douglas Fenton of North Coast Women’s Care Medical Group refused to inseminate her, Guadalupe “Lupita” Benitez was forced to find another provider that was not in her health care plan and to start the insemination process all over again. Now the mother of a baby boy, Benitez’s case has attracted national attention, setting a precedent for GLBT individuals who are discriminated against in the medical industry due to their sexual orientation.

“Lupita was very clear about the treatment that she wanted and needed,” explained Jennifer C. Pizer, senior staff attorney in Lambda Legal’s Western Regional Office who is litigating the case. “They misled her, they gave her drugs to take, but only if you are engaged in a course of treatment that is reasonably calculated to result in pregnancy. They were withholding an important part of the treatment from her, and on a month-by-month basis, kept renewing her expectation that she would get the treatment that she needed. Each month it would be another excuse – performing tests on her, performing surgery, doing a range of things that in the normal course of medical practice, you would not do those things before doing the insemination, you would just do the insemination.”

Prior to beginning treatment, Brody allegedly told Benitez that because Benitez’s sexual orientation conflicted with her religious beliefs, she would not inseminate her, but would arrange for one of her colleagues to do so. After extensive testing and medication was administered, Brody referred Benitez to Fenton, who also refused to inseminate Benitez based on personal religious beliefs.

Calls placed by the Gay & Lesbian Times to Drs. Brody and Fenton were not returned.

“It was fraud, it was dishonest, it was misleading and it was discriminatory,” Pizer said. “The problem was that Dr. Brody didn’t arrange the care to ensure that somebody who was competent and willing to do the treatment would be there to do the treatment. … As it happens, there were only two people who could do a critical part of the procedure, and both of them objected. So it appears that there was no way that she could receive that treatment, and that is contrary to what she was told.”

Because North Coast Women’s Care was the only Ob/Gyn specialist covered under her health plan, Benitez had to pay thousands of dollars to an Ob/Gyn outside of her health plan in order to receive fertility treatment.

Benitez’s discrimination suit names North Coast Women’s Care as a whole and Brody and Fenton as individuals. Claims include sexual orientation discrimination, breach of contract, breach of implied contract, breach of the covenant of good faith and fair dealings, negligence, intentional infliction of emotional distress, deceit and fraud.

“It is something that has become an increasing problem,” Pizer said. “There seems to be this belief out there in the world that religion gives people a free pass to mistreat people in business and commercial settings. … That is a very serious problem for lesbians and gay men – that mistaken belief that people who are conducting a profession or some kind of commercial enterprise have a right to act as if they’re in church when in fact they’re running a business, and to pick and choose who they will serve as customers; who they will rent to; or who they will care for as a patient. It is in some ways an important question. We are firmly convinced that we are correct that there is no religious exemption there, but there has not been a lot of litigation in the area. That is an important element of the case.”

Benitez’s discrimination lawsuit was originally thrown out of court due to a ruling that stated federal law regulating employee benefits plans prohibits a civil rights claim against doctors whenever an employer-paid health plan pays for the doctors’ services. In 2003, Benitez appealed the decision and won her right to sue North Coast Women’s Care. The state appeals court decision is the first ruling of its kind in the nation, allowing a patient to sue their healthcare provider if they are discriminated against due to their sexual orientation. The decision was based on the fact that federal law requires healthcare providers to abide by civil rights laws. “As a practical matter, it means yes, you can sue your provider or the hospital because the federal law is not a barrier,” Pizer said.