Court allows religious defence for lesbian AI discrimination

An appeals court in California has ruled that fertility doctors can be allowed to argue that they had the right to refuse artificial insemination (AI) treatment to a lesbian woman in 1999, based on the defence that it would violate their religious beliefs. The doctors altered their initial stance during the trial, and now claim that they refused treatment to Guadalupe Benitez on the grounds of her being unmarried. At the time the case was filed, discrimination based on marital status, unlike discrimination based on sexual preference, was not explicitly prohibited by California law. Although subsequently the state Supreme Court has ruled that discrimination claims based on marital status can be filed, the justices will not apply this protection retrospectively.

Ms Benitez, a lesbian, sued doctors from a small San Diego fertility practice in 2001, after being refused AI treatment. Ms Benitez claimed that she was told by one of the clinic's doctors, Christine Brody, that she would not perform the procedure on a lesbian because of her faith. As the case was heading for trial in 2003, Benitez's lawyers asked the trial court judge to rule to prevent the doctors raising a religious defence at the trial. When the judge did so the doctors appealed. The case has been closely followed in the US as it brings the gay community into conflict with the increasingly political religious community. The California Medical Association and the Christian Medical and Dental Association joined in the doctors defence.

Carlo Coppo, the lawyer representing the doctors, said the ruling gave them a chance to make their case fully to a jury, 'We believe it restores the religious liberty defence to our clients properly. It allows a jury to decide if the treatment of Ms Benitez and her partner was based on sexual orientation, sexual preference, or marital status, which is the issue that needs to be tried', he said. Jennifer Pizer, a lawyer for Lambda Legal Defence - the national gay-rights legal advocacy group that represented Benitez - said the decision would now be appealed in the California Supreme Court. She commented that 'we fear this decision is going to worsen the confusion in the minds of the public about whether you can legally discriminate in the name of religion. The bottom line is that you should not be able to treat patients in a discriminatory way'. Benitez, 33, was treated elsewhere and now has a three-year-old boy.