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LGBT Advocates Hope Expanded Infertility Coverage Is Just the Start

The head of Garden State Equality says a lawsuit by three lesbian couples has put a spotlight on the health needs of the gay community

Christian Fuscarino
Christian Fuscarino, executive director, Garden State Equality

A federal lawsuit claiming a state regulation discriminates against gay couples seeking insurance coverage for infertility treatments may have sparked action on a potential legislative fix, but LGBT advocates said more needs to be done to ensure they are truly protected by rules governing healthcare in New Jersey.

In August, lesbian couples filed suit against the head of the Department of Banking and Insurance, Commissioner Richard J. Badolato, claiming regulations created in his department violate their rights under the U.S. Constitution by essentially denying them the right to procreate, which it suggests is an essential complement to the right to marry. The way the state rule is now written, the definition of “infertile” requires women to have unprotected sex with a man for at least a year -- leaving lesbians unable to qualify and therefore uncovered by insurance for fertility treatments.

That action, which received widespread media attention, quite likely jumpstarted the legislative process on a bill that would change the regulation to ensure same-sex couples could also qualify for fertility treatment coverage. Introduced in January, the measure didn’t receive a hearing until last week. Similar bills have been proposed since 2013 but failed to gain significant traction.

While pleased to see movement on the infertility issue, some gay rights advocates suggest this regulation is just one of many that needs to be overhauled to ensure full protection for lesbian, gay, bisexual, and transgender individuals seeking healthcare. Christian Fuscarino, executive director of Garden State Equality, said his organization has been working with lawmakers to identify and address some of these healthcare issues, and members hope to meet with officials at DOBI soon. Efforts to meet with Gov. Chris Christie directly have been unsuccessful to date, Fuscarino said.

“The recent lawsuit has brought much-needed attention to this issue and to the lives of same-sex couples, especially those who are being discriminated against by the insurance regulations,” Fuscarino said. “I think that what many people are learning right now is that there aren’t enough protections for LGBT people within the healthcare space. It’s not only about trying to solve the specific problems at hand, but having a much larger conversation around the healthcare needs of LGBT individuals.”

While regulatory changes may take time, there is a growing awareness in New Jersey of the unique needs of LGBT patients, particularly transgender individuals. The New Jersey Hospital Association held an LGBT care forum in June and plans another session for members this fall.

The Department of Psychiatry at Rutgers Medical School held a conference focused specifically on transgender health in June and leaders there are reconsidering how providers can better serve these individuals. A team at Robert Wood Johnson University Hospital Somerset is looking to host clinic hours specifically for transgender patients later this year.

In addition, Garden State Equality launched an online effort called “Map + Expand” that seeks to gather data and map the availability of compassionate healthcare providers, and encourage an expansion of appropriate care.

Awareness and sensitivity training are important for healthcare providers, Fuscarino noted, but regulatory changes are also needed.

“There are numerous discriminatory practices that are taking place, especially when it comes to trans people,” he said.

The infertility lawsuit, filed in U.S. District Court, in Newark, claims New Jersey’s regulation denies these women the right to procreate by failing to require most insurance plans to cover infertility treatments for lesbians. The rule hinges on the definition of ‘infertility,’ which now requires women to have sex with a male partner for at least a year before they can be eligible for insurance to pay for procedures like in-vitro fertilization or other techniques. A DOBI spokesman declined to comment on the pending case.

The case involves Erin and Marianne Krupa, a Montclair couple, Sol Mejias and Yanessa Hernandez of North Bergen, and Sarah Mills and Gloria Torres of Union City. The women are in their 30s and several have been struggling for years to get pregnant, a process the suit says has taken a significant physical and emotional toll on their health. Horizon BlueCross BlueShield, the state’s largest insurer, eventually did agree to cover some of the Krupas’ treatments but has denied the other two couples’ requests to date. A spokesman said the company, which is not named in the suit, could not comment, given patient privacy protections.

“Every day that New Jersey law continues to exclude women in same-sex relationships from the protections of the infertility mandate, these women must either wait for the law to change as their childbearing years continue to slip away or, if they have any available resources, bankrupting themselves and their families in order to pay for fertility care that is automatically covered for straight women,” the complaint states.

The plaintiffs hope to have the law changed and to be awarded various damages, as well as attorney fees.

State lawmakers have been aware of this problem for several years and, led by Senate Majority Leader Loretta Weinberg (D-Bergen), Sen. Nia Gill (D-Essex), Assemblywoman Pamela Lampitt (D-Camden), and others, have crafted a plan to resolve this issue. On Thursday, committees in both houses approved mirror versions of the bill (A-1447/S-1398), a process that Democratic staff members said was fueled in part by the emergence of the lawsuit last month.

“No one should be denied coverage for health services due to their sexual orientation,” Lampitt said. “New Jersey has always been on the front lines of the fight for equality, but outdated regulation like this continues to hold us back.”

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