Blue Cross Accused of Anti-LGBTQ+ Bias in Fertility Coverage

An Illinois woman can proceed with a proposed class action alleging that Blue Cross Blue Shield of Illinois’ fertility treatment coverage policy violates the Affordable Care Act’s anti-bias provision, a federal court said.

It’s reasonable to infer that BCBS intentionally discriminates on the basis of sex by requiring people in same-sex relationships to prove infertility and qualify for treatment by demonstrating that they were unable to conceive after a year of unprotected sex between a man and a woman, the US District Court for the Northern District of Illinois said.

The court denied BCBS’s motion to dismiss Kelsey Murphy’s suit over the health insurer’s alleged violation of Section 1557 of the Affordable Care Act. This provision prohibits discrimination in health-care programs and activities when it’s based on characteristics, such as sex, protected by other civil rights statutes.

It has been a controversial subject in the courts, but the parties agreed that Section 1557 prohibits bias based on sexual orientation, the court said. BCBS said that the facts nevertheless didn’t support Murphy’s claim.

Murphy and her partner must rely on fertility treatments like in vitro fertilization in order to have children. BCBS denied her coverage in 2020, saying she didn’t meet her policy’s requirements.

BCBS’s 2020 policy defined infertility as an inability to conceive after a year of unprotected sex or “attempts to produce conception.” The insurer said the policy wasn’t discriminatory because it gave participants several alternative ways to prove infertility.

But the policy defined unprotected sex as sex between a man and a woman, the court said. Thus, a cisgender woman would qualify for coverage if she wasn’t able to conceive after one year of having unprotected sex with a man, it said. A lesbian, however, would have to demonstrate infertility in another way—such as by trying to conceive through other means, it said. The second woman would have to shoulder out-of-pocket costs just to prove she couldn’t conceive, it said.

The policy can’t reasonably be read to imply that a person in a same-sex relationship can meet the policy’s requirements simply by proving that they don’t have heterosexual relations, the court also said. “If it were true that a covered individual in a same-sex relationship satisfies the ‘infertility’ definition, Blue Cross should have covered Plaintiff’s IVF treatment instead of forcing her to pay out-of-pocket,” Judge LaShonda A. Hunt said.

Wallace Miller represents Murphy. Reed Smith LLP represents BCBS.

The case is Murphy v. Health Care Serv. Corp., N.D. Ill., No. 22-cv-2656, 10/17/23.