Access to fertility insurance coverage for LGBTQ employees after Bostock

Fertility allowances are on the rise in US employee benefits. In vitro fertilization (IVF) coverage has increased steadily over the past five years for both medium and large employers. Facebook and Apple were the first to cover egg freezing in 2014. Now employers like Salesforce and Spotify provide surrogacy coverage up to $80,000. LGBTQ couples, however, have found themselves excluded from fertility treatment coverage that is extended to their heterosexual counterparts.

The source of this exclusion stems from the requirement of many health insurance policies that a person be diagnosed as “infertile” in order to access coverage. In many diets, infertility is defined such as conception failure after 12 months of unprotected heterosexual intercourse or after 6 to 12 cycles of therapeutic donor insemination.

For same-sex couples, this definition leaves only one option: 6 to 12 cycles of insemination. Without insurance, these treatments are prohibitively expensive: a single cycle of intrauterine insemination (IUI) can cost more than $5,000 while the average IVF cycle costs up to $25,000 with drugs. Simply put, heterosexual couples may be eligible for insurance coverage after a year of trying to conceive – at no monetary cost. But under current insurance policies, same-sex couples must spend at least $30,000, and often more, before any insurance kicks in.

This is a growing source of concern for LGBTQ advocates. Some call it “weird taxand argue that fertility remains defined in heterosexual terms. In September 2021, lawyers filed the first major lawsuit against an insurer for this policy: National Center for Women’s Rights and civil rights firm Emery Celli Brinckerhoff Abady Ward & Maazel filed a class action against Aetna for its discriminatory treatment of LGBTQ couples. Aetna quickly repudiated previous coverage denials and announced that it would provide immediate coverage, in line with a recently passed decision. New York law.

However, apart from legal actions against insurers, what is the place of employment discrimination law in this legal landscape? Specifically, can employees now sue their employers under Title VII following the Supreme Court’s decision in Bostock? There are reasons to believe that a legal challenge could be viable. The position of the EEOC and the courts on gender discrimination in employee health benefit plans, as well as recent challenges under Bostock can lay the groundwork for a successful legal action.

Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment with respect to “compensation, terms, conditions, or privileges of employment” on the basis of race, color, national origin, sex or religion. This includes discrimination in benefits, including employer-provided health care plans. In 2020, the Supreme Court ruled in Bostock v. County of Clayton that Title VII’s prohibition of discrimination in employment “based on sex” includes discrimination based on sexual orientation or gender identity.

While attention has been paid to Bostockthe implications of for basic employment issues such as hiring, firing and compensationthere are also implications for employee benefit plans. Labor lawyers and benefits advisors warned of ‘benefits implications’ Bostock, especially for employer-sponsored health care. Judge Alito, in his Bostock dissent, anticipated this impact: “Health care benefits could become an intense battleground in the Court’s decision. »

It is well established that Title VII prohibits discrimination on the basis of sex in employer-provided health care benefits. the EEOC Compliance Handbook calls on employers to ensure that health benefits are non-discriminatory. Granting superior advantages to one sex over the other clearly violates Title VII (EEOC vs. Fremont Christian School), including for spouses of employees.

The Supreme Court has most directly addressed gender discrimination in health insurance plans by Newport News Shipbuilding & Dry Dock Co. vs. EEOC. In Newport News, the employer-provided health insurance plan provided female employees with hospitalization benefits for pregnancy-related medical problems, but denied these same benefits to the wives of men. First, the court ruled that employee benefits, such as health care benefits, constituted compensation under Title VII. Further, the court found that the employer’s specific benefits policy discriminated against male employees, in violation of Title VII. The court’s decision turned that a male employee of the company was treated in a way “which, but for that person’s gender, would be different”. In other words, access to health benefits differed by employee gender. Newport News remains a widely cited authority on gender discrimination in health care plans.

The Post-Bostock

With Bostock now in place, the logic of Newport News could easily be extended to fertility benefits based on sexual orientation. Just like in Newport Newsit could be argued that, for the purposes of fertility benefit coverage, an LGBTQ employee seeking fertility treatment is being treated in a way that, but for their sexual orientation, would be different. Newport News also provides a strong precedent for holding employers (excluding insurers) liable for Title VII violations based on the coverage and eligibility requirements of their employee health insurance plans. The Court’s position on sex discrimination in health care benefits under Title VII, particularly under Newport Newscan support future challenges based on sexual orientation.

Following Bostock, there have been legal challenges to employee health care plans, although they have mostly concentrate on transgender health services. In 2020, a United States District Court in Arizona ruled that a state insurance policy that excluded gender-affirming surgery violated Title VII (see Fletcher v. Alaska). A trial is currently underway in the case of Toomey c. Arizona State in which a public college professor was denied a hysterectomy as part of his sex reassignment treatment.

In April, a gay New York couple deposit which might be one of the EEOC’s first complaints about it. The couple, which includes a city employee, were denied IVF coverage for surrogacy due to the definition of infertility used by the New York City Employees Health Plan. The couple have warned of a future class action lawsuit.

What is the solution for employers wishing to ensure equal access? The most straightforward solution is to provide immediate coverage to people who cannot conceive because of their sexual orientation. This is the solution adopted by New York State: a 2021 law obliges insurers to cover basic infertility treatments, in particular IUI, for people “unable to conceive due to their sexual orientation or gender identity”. It is not without challenges. Below Bostock, this change could be challenged by heterosexual people inciting discrimination on the basis of sexual orientation given that they still have to wait at least a year before accessing insurance coverage. New York law also allows insurers to first exhaust “basic fertility treatment” of IUI before trying IVF. This may not solve the problem for same-sex couples, depending on their family planning goals. (For example, if a lesbian couple wants to conceive with an egg from the non-birthing partner, the only option is to do IVF followed by implantation).

The growing prevalence of fertility benefits in employee benefit plans raises concerns about the discriminatory treatment of LGBTQ employees. This most recent complaint from the EEOC could be the first test case. It remains to be seen whether the court’s current Title VII case law in a post-Bostock world will support claims of employment discrimination on the basis of sexual orientation in employee benefit plans.


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Justin D. O'Neill