Issue:  Vol. 48 / No. 8 / 22 February 2018

CalPERS sued by same-sex couples


Elizabeth Litteral and Patricia Fitzsimmons. Photo: Charlotte Fiorito
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Several same-sex couples are plaintiffs in a lawsuit filed this week in federal district court in San Francisco alleging that federal and California laws violate the U.S. Constitution by excluding same-sex partners of government employees from tax-protected long-term care insurance plans.

The defendants include the Board of Administration of the California Public Employees Retirement System (CalPERS), the U.S. Treasury Department, and the Internal Revenue Service.

Michael Dragovich, one of the plaintiffs, explained the process of learning about long-term coverage under CalPERS and said, "It's hard to get information from them in general, and then this was really frustrating when they denied ... a legally married couple access to California state benefits to which other legally married couples are allowed access."

Dragovich, 51, a UCSF nurse specializing in liver transplants who joined the CalPERS plan as a state employee in 1997, married Michael Gaitley, 51, in June 2008. Their marriage came the month after the California Supreme Court issued its ruling allowing same-sex couples to marry in the state.

In November that year, the passage of Proposition 8 constitutionally banned same-sex marriages in California, although the state Supreme Court later ruled such marriages that occurred before Prop 8 passed were legal.

The San Francisco-based Legal Aid Society-Employment Law Center filed the class action lawsuit Tuesday, April 13.

In a statement from the society, plaintiff Patricia Fitzsimmons, 59, who's married to state employee and plaintiff Elizabeth Litteral, 50, said, "Liz and I are in our 50s. We want to plan responsibly for our whole lives. We don't want to rely on our daughter for care. We want her to live her own life."

Among other things, the suit aims to make the CalPERS administration board permit the enrollment of the same-sex spouses and registered domestic partners of state employees during future open enrollment periods for its long-term care plan.

Long-term care insurance provides coverage when a person needs help with basic activities due to chronic illness, injury, age, or a severe cognitive impairment like Alzheimer's.

Under federal law, a state may offer a tax-protected long-term care plan to public employees and a broad array of family members, including parents, nieces and nephews, "step" relatives, and opposite-sex spouses, but not same-sex spouses or registered domestic partners, according to the legal aid group.

Following federal law, CalPERS also excludes same-sex partners, according to the group.

Brad Pacheco, a CalPERS spokesman, said in an e-mail that the agency's legal office is reviewing the complaint, so he didn't have further comment. However, he added, "The laws around same-sex marriage are very complex at both the state and federal level and we are looking at these and the lawsuit in relation to our program."

Jesse Weller, an IRS spokesman, declined to comment on the suit.

A Treasury Department spokeswoman also declined to comment.

Dragovich and Gaitley and Litteral and Fitzsimmons and the other couple named as individual plaintiffs in the suit – Carolyn and Cheryl Light – all live in San Francisco, according to Claudia Center, attorney for the plaintiff couples.

The complaint suggests a class action suit was filed because it would have been "impracticable" to include individually all same-sex couples facing similar circumstances. The complaint cites an estimate from the Williams Institute on Sexual Orientation Law and Public Policy at the UCLA School of Law that there are nearly 193,000 state and local public employees in California who are LGBT.

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