Gay Male Couple’s NYC Fertility Benefits Suit to Test Bias Law

A dispute over IVF coverage for a gay New York couple will serve as an early test case for the extent to which plaintiffs can rely on a federal workplace bias law to challenge how an employer grants fertility benefits.

The class action filed May 9 in New York federal court appears to be the first lawsuit to argue that employers must provide equal IVF benefits to gay male employees under Title VII of the 1964 Civil Rights Act. Similar disputes often target the insurance company instead under the Affordable Care Act’s Section 1557 antidiscrimination language.

It’s also the latest in a string of cases from LGBTQ+ plaintiffs challenging the traditional definition of “infertility” needed to qualify for IVF coverage, with the couples arguing the definition discriminates against same-sex partners.

The outcome of the case will add to an emerging legal landscape in the wake of the US Supreme Court’s 2020 Bostock v. Clayton County decision, which expanded the definition of sex discrimination under Title VII to include an employee’s sexual orientation and gender identity.

A former New York City employee alleged in the suit filed in the US District Court for the Southern District of New York that the city health plan’s definition of infertility unfairly excludes gay male couples, even while including lesbian couples and single women.

The city defines infertility as failing to conceive after 12 months of male-female sexual intercourse or after intrauterine insemination, which makes gay men ineligible, former New York City Assistant District Attorney Corey Briskin and husband Nicholas Maggipinto argued in their complaint.

Suing under Title VII rather than Section 1557 allows the couple to pursue claims against Briskin’s former employer, New York City, rather than the insurer.

“We felt like it was important to bring the claim against the city itself as the employer because it has the power to tell the health insurance company what the standards will be, and what will and will not be covered,” said Peter Romer-Friedman, a lawyer for the couple. He noted that the city partners with multiple insurance companies.

Section 1557 claims weren’t immediately necessary, Romer-Friedman added, but said he could still bring those claims in the future.

“They can get a complete remedy from the city,” he said.

Briskin and Maggipinto are seeking damages in addition to revisions to the IVF policy.

Title VII is rarely used in cases involving LGBTQ+ fertility, but is more frequently used in cases about coverage for gender-affirming care.

The US Court of Appeals for the Eleventh Circuit, for instance, recently upheld a lower court’s ruling that a Georgia county discriminated against a transgender sheriff deputy by refusing to pay for the deputy’s gender-affirming surgery.

Title VII vs. Section 1557

The Title VII claims in the New York couple’s case are a “slam dunk,” said Susie Cirilli, a New York-based lawyer at Flaster Greenberg who specializes in sex discrimination, because the implementing regulations are so explicit on the subject. She pointed to language that says employers shouldn’t provide benefits for the wives and families of male employees that they wouldn’t provide for the husbands and families of female employees.

“Gender now means sexual orientation,” she said, referencing Bostock. “So you can just swap out male and female and put gay or straight or whatever. I think gender needs to get out of all these statutes because it’s just messing everybody up.”

“In this case, there is a categorical exclusion of same-sex couples from coverage and that is—under Title VII—that is sex discrimination,” said Madeline Morcelle, an attorney with the National Health Law Program. “So I do believe that they have a strong case.”

But others are less sure. The city has claimed, in a previous position statement on 2022 charges filed by Briskin and Maggipinto with the US Equal Employment Opportunity Commission, that the couple is requesting coverage for a “surrogate.” But the couple argues they’re only asking for coverage for egg retrieval and fertilization—which is offered for other employees—and not embryo implantation.

Nicole Huberfeld, a health law professor and co-director of Boston University’s Program on Reproductive Justice, said it was a “tough call.”

“What needs to happen is that New York state and New York City need to revisit the definition of infertility,” she said.

The case could hinge more on the definition of infertility itself, said Nidhi Desai, director of assisted reproductive technology for the Academy of Adoption and Assisted Reproduction Attorneys. The issue could evolve into a debate over federal versus state authority.

“I think the bigger question that’s going to arise is, how do you define infertility and is it okay for one state to define infertility one way and another state to define infertility another way,” she said, “when it’s both a medical issue and family building issue.”

Suing under Title VII avoids the legal skirmishes over whether the Bostock ruling should be integrated into Section 1557.

The US Department of Health and Human Services earlier this month finalized regulatory changes to align Section 1557 with the Bostock decision, reversing the more narrow Trump-era interpretation. Florida and Mississippi are now suing, arguing the language could require clinicians to offer gender-affirming care.

State’s Definition

Briskin and Maggipinto’s complaint cites two Section 1557 cases in support of its arguments, Murphy v. Health Care Service Corp. and Berton v. Aetna Inc., both of which allege insurance companies’ IVF policies discriminate against women in same-sex partnerships by requiring the couples to pay for services like intrauterine insemination before qualifying.

Under many IVF policies, different-sex couples typically qualify after a year of attempting to conceive through unprotected sex, which same-sex couples aren’t able to do.

Aetna agreed to change its policy to rework its definition of “infertility” to settle a similar New York case earlier this month.

A New York City Council bill seeks to fix the problem cited in Briskin and Maggipinto’s suit by removing the “infertility” requirement for IVF coverage. But Democratic Councilwoman Lynn Schulman, who’s sponsoring the measure, is currently working through legal issues related to possible interference with current contracts, according to her office.

There is no federal requirement for health plans and employers to cover IVF at all. A number of states have varying fertility mandates of their own, though only some explicitly cover benefits for LGBTQ+ couples. The Biden administration also recently expanded coverage for veterans and military servicemembers.

The city’s interpretation appears to conflict with New York state’s, Huberfeld said. The state’s definition of infertility includes a caveat: “Earlier evaluation and treatment may be warranted based on an individual’s medical history or physical findings.”

Theoretically, Briskin and Maggipinto could qualify for IVF coverage under that provision, she said.

But Huberfeld said the state’s definition is also outdated, pointing to the American Society for Reproductive Medicine’s 2023 revision of its infertility definition. ASRM now includes the “need for medical intervention, including, but not limited to, the use of donor gametes or donor embryos in order to achieve a successful pregnancy either as an individual or with a partner.”

“The bigger-picture take is that New York state needs to revisit its definition of who qualifies for IVF coverage because of the way that ASRM has redefined infertility,” she said.

The case is Briskin v. City of New York, S.D.N.Y., No. 1:24-cv-03557.