University Times

ONE ON ONE: DEBORAH HENSON

The woman behind the "Henson case" talks about why she filed her complaint.

Deborah M. Henson left the University three years ago. But the legal conflict over Pitt's denial of spousal health benefits for her lesbian partner simmered until last February — when it boiled over into a public controversy pitting faculty governance groups, city officials and, most recently, student hunger strikers against Pitt trustees and administrators.

Henson, a former legal writing instructor here, alleges in a complaint before the city Human Relations Commission that Pitt violated the city's anti-discrimination ordinance by denying health benefits to her domestic partner. The ordinance forbids discrimination based on sexual orientation.

Pitt attorneys have asked the commission to dismiss Henson's claim, arguing that: (1) the University's health insurance plan does not discriminate based on sexual orientation; (2) while Pitt does restrict spousal health coverage to married couples, marital status is not covered under the city's anti-discrimination law; and (3) the remedy Henson seeks is pre-empted by, or otherwise contrary to, state law, and the Pittsburgh commission lacks the jurisdiction to order it.

It was this last argument — that Pennsylvania municipalities lack the legal authority to pass anti-discrimination laws exceeding state laws — that touched off the public debate.

Pitt's critics, including some members of Pittsburgh City Council, accuse the administration and trustees of trying to undercut legal protections for gay and lesbian Pittsburghers. If the University's defense succeeds, they say, it could overturn anti-discrimination laws throughout the state.

University officials say they aren't attacking the city law, but only defending Pitt against a wrongheaded legal claim. Until recently, they pointed out that the city itself does not offer health benefits to same-sex domestic partners. But that was before city officials announced plans to offer same-sex partner benefits to city employees.

The Human Relations Commission is expected to rule on Pitt's motion to dismiss Henson's claim by June 1.

One voice that's been missing from the "Henson case" brouhaha has been that of Henson herself.

In a telephone interview, Henson denied she's been avoiding the press. "If anything, it's been more the other way around," she said, with a laugh. "Actually, the press have called me over the years about this case, just not so much recently."

Henson refuted a published report that Chancellor Mark Nordenberg, when he was law dean, encouraged her to seek health benefits for her partner. In fact, Henson said, it was former Dean Peter Shane who supported her and told Pitt senior administrators that his school's faculty recruiting would benefit if the University extended health coverage to same-sex domestic partners.

Today, Henson lives in New Orleans with her partner of 12 years, Sue Wilson, an oncology social worker; son Cody, 6; and daughter Marissa, 2. Henson is the birth mother of both children, and Wilson legally adopted Cody when the family lived in Pittsburgh.

"We're hopeful that Sue will be able to adopt Marissa as well, but Louisiana law is a lot more conservative than Pennsylvania law," Henson said.

Since leaving Pitt, Henson, now 44, has worked for a Louisiana Supreme Court justice and, more recently, for the Louisiana Attorney Disciplinary Board. Soon she will begin a new job with a private New Orleans legal firm, Stanley & Flanagan.

Henson said she's also developing her own legal practice, and will continue her second career as a clinical social worker during evenings and weekends.

None of the employers Henson has worked for since leaving Pitt offers health benefits to same-sex domestic partners. "Stanley & Flanagan is just a small firm that doesn't offer a formal health plan per se," she noted. "It gives you a health stipend you can use to purchase health benefits for yourself or your family."

Henson talked this week with University Times Assistant Editor Bruce Steele.

UNIVERSITY TIMES: It's been suggested that you want more than simply the extension of Pitt health benefits to gay and lesbian partners of faculty and staff — that, through your claim, you're seeking nothing less than legal marital status for same-sex partnerships in Pennsylvania.

HENSON: That's one of Pitt's legal arguments to try to confuse the issue and scare people. But what we're seeking is exactly what we say: equal benefits for gay and lesbian employees.

If a dean goes out and recruits a straight employee and says, "I'm going to offer you this amount of salary plus fringe benefits at X percent," and then he makes a similar salary offer to a gay or lesbian employee, that gay or lesbian employee will receive less, if they have a domestic partner. That's a significant difference in compensation.

It also has a significant security aspect. People relocate to a new community, and maybe the spouse is unemployed, as my partner was at the time I took the position at Pitt. We had a child, who at that time was 14 months old. I could carry Cody on my insurance, but Sue wasn't working yet. So it was a very real issue for us. She needed health insurance. A straight employee who was hired in the law school at the very same time that I was had just gotten married, and he was able to sign his wife up [for health insurance]. My partner, with whom I had been involved for seven years, couldn't get coverage.

Would you see achieving legal marital status for gay and lesbian partners as a positive secondary outcome, if you win your claim?

That's something that would have to be sought through the legislature.

It's no secret that I was co-founder of the Western Pennsylvania Same-Sex Marriage Project. I think legal marriage [for same-sex partners] would be the best thing for families, for the partners' relationship and for the kids. In terms of benefits, it would mean employers wouldn't have to worry about domestic partnership. Either employees would be married or they wouldn't be married, whether they were straight or gay.

How did you reach the decision to challenge Pitt's health benefits policy?

I started challenging this when I was first hired, in the summer of 1994. When I was at the benefits orientation for new hires, an employee at the law school who was hired on the same date as me asked, "Where do I sign up my wife?" The benefits people said to him, "On line such-and-such." So I said, "Where do I sign up my domestic partner?" They said to me, "Oh, umm, we can't do that."

Everybody was very nice, but the benefits people said they couldn't do it [cover domestic partners] because Blue Cross wouldn't let them. Actually, some of the faculty at the law school had told me that I could sign up for benefits, because there had been all of the press about the domestic partnership registry that was established in 1993. These faculty had told me, "Yes, there was this big to-do about domestic partnership, and now Pitt offers benefits to same-sex partners." So I was surprised to find I could not get Sue covered.

I went to the [University Senate] anti-discriminatory policies committee, which studied my situation and wrote a letter to the administration saying, "This is clearly discrimination against lesbian and gay employees. You need to rectify this immediately."

Historically, that committee was consulted about a variety of civil rights issues, and according to committee members, every time they looked into something and made recommendations to the administration in a civil rights context, their recommendations were adopted immediately. So they were quite surprised when they got no response from the administration about my situation.

During that time, I talked to [then-law school Dean] Peter Shane. I believe he told the administration that he thought it would help the law school in recruiting top quality faculty if Pitt would offer benefits equally, to same-sex domestic partners as well as to married heterosexual couples.

In a phone interview, Shane confirmed Henson's account.

One of the arguments against extending health benefits is that it could cost much more money than offering bereavement leave, limited tuition remission and library privileges — benefits that Pitt currently offers to same-sex partners.

But it really doesn't cost that much, if you look at the numbers that other institutions have crunched about this. It's some infinitesimal amount. One of the benefits Pitt does offer is tuition remission for domestic partners. It takes substantial faculty time to teach, to grade, to meet with a student. So really, that can be a more expensive benefit, and it's already being offered.

When I filed my complaint in January 1996, I think there were 10 domestic partners registered at Pitt. Assuming that all 10 of those people needed health insurance, we would have been talking about adding 10 individuals to a group of thousands.

A counter-argument is that if Pitt offers health benefits to same-sex domestic partners, it would be obligated to offer those benefits to heterosexual domestic partners, too.

That's Pitt's argument. I'm not opposed to that [extending benefits to heterosexual partners], philosophically. I don't think people should be forced to enter the institution of marriage. But that's a whole separate argument. In fact, heterosexual people have the option of marrying. Same-sex couples do not.

Secondly, it is my understanding that some individuals who are straight and not married have received health coverage already, although Pitt says it is not their official policy. But Pitt has also admitted that they don't ask a heterosexual couple to produce their marriage license [to qualify for spousal benefits].

While Pitt does not require employees to present marriage licenses in obtaining University health coverage for spouses, employees must sign a legally binding statement confirming their marital status, said Pitt benefits director Nancy Gilkes.

Pennsylvania is also a common law marriage state where, if people present themselves as married, they don't have to be officially married to get health benefits. That wasn't an option that was available to Sue and me.

You and your family no longer live in Pittsburgh. Why are you pursuing your claim here?

Because I want benefits to be equally available to all Pitt employees. I could have dropped my claim. My lawyer, Chris [Biancheria], made sure that the argument could not be made that, "Oh, well, Deb's left so there's really no issue here." Chris worked hard to see if other people were in the same boat, and as you know, other gay employees at Pitt have joined me in filing claims with the Human Relations Commission.

People have called me from all over the University, saying "I'm so glad you did this. I can't do it because I feel I would be retaliated against in my department." I'm talking tenured people. You would think, "They have tenure. What do they have to lose?" Well, they have a lot to lose, because if the chairperson of their department doesn't like them, they might not get opportunities for good teaching packages, travel and research grants, whatever.

Doesn't the response you've gotten indicate that maybe a lot more than 10 people would seek health coverage for their domestic partners if it became official Pitt policy? So, maybe the cost wouldn't be so low?

They didn't tell me that they needed it [coverage for same-sex partners]. They said they thought it was the right thing to do, but that they themselves could not come forward. If people are that closeted, if they're that nervous, they may not want to sign up for benefits. And even if the earlier number doubled and 20 people came forward, I still don't think the cost would be that high.

In the April 28 Pittsburgh Post-Gazette, Executive Vice Chancellor Jerry Cochran said that if 10 percent of the 3,292 employees with individual health benefits opted for benefits for a same-sex or opposite-sex domestic partner, the annual cost to Pitt would be over $750,000. The cost could be $7 million if all of those with individual health coverage were to ask to have coverage extended to a domestic partner, Cochran said.