Reversing a decision by the Westchester County Human Rights Commission, a New York appeals court recently held that a policy adopted by a local Board of Cooperative Educational Services (BOCES) to offer health care to same-sex domestic partners did not unlawfully discriminate against opposite-sex domestic partners. Among its services, BOCES offers health care benefits to employees of local school districts. In 2005 the board of the BOCES plan voted to extend dependent health care benefits to same-sex domestic partners of member employees. Following notification of the benefit change, a teacher sought health coverage for her long-term opposite-sex domestic partner. Denied coverage, the teacher filed a complaint with the commission, alleging that she had been unlawfully discriminated against on the basis of her sexual orientation and marital status, in violation of a local human rights law. Holding that BOCES had unlawfully discriminated against the teacher, the commission awarded damages and directed BOCES to make health care benefits available to the teacher’s domestic partner and to all opposite-sex domestic partners on the same basis as to same-sex domestic partners. In overturning the commission’s decision, the New York Supreme Court Appellate Division found that BOCES demonstrated a legitimate, nondiscriminatory reason for offering health care benefits only to same-sex domestic partners — that same-sex domestic partners cannot obtain the benefits offered to employees’ spouses by becoming lawfully married In New York. Noting that the Domestic Partner Policy itself states that it may be rescinded in the event that same-sex marriage becomes legal in the state, the court found that the ability of same-sex couples to be married in other jurisdictions does not undermine the legitimate, nondiscriminatory basis for the decision to offer benefits only to same-sex couples, that is, the impediment to marrying in New York. The teacher’s claim that she was discriminated against on the basis of marital status also failed in the eyes of the court, because eligibility for domestic partner health care benefits does not turn on the marital status of the employee. As the court pointed out, the same-sex domestic partners who were allegedly treated differently have the same marital status as the teacher — they are all unmarried. (In re Putnam/N. Westchester Bd. of Coop. Educ. Servs. V. Westchester Cnty Human Rights Comm’n, N.Y. App. Div., 2011)