In a significant legal development, an Illinois woman, Kelsey Murphy, has received a green light from a federal Court to proceed with a proposed class-action lawsuit against Blue Cross Blue Shield of Illinois (BCBS). The lawsuit alleges that BCBS’s fertility treatment coverage policy runs afoul of the Affordable Care Act’s (ACA) anti-bias provision.

Court Identifies Discriminatory Aspects of BCBS’s Fertility Treatment Policy

The US District Court for the Northern District of Illinois has determined that it is reasonable to infer that BCBS intentionally discriminates based on sex. The alleged discrimination centers on BCBS’s requirement for individuals in same-sex relationships to prove infertility to qualify for fertility treatment. This requirement necessitates demonstrating an inability to conceive after a year of unprotected sex between a man and a woman.

Denial of BCBS’s Motion to Dismiss

In a significant blow to BCBS, the court denied the health insurer’s motion to dismiss Kelsey Murphy’s lawsuit, centered on BCBS’s alleged violation of Section 1557 of the ACA. Section 1557 prohibits discrimination in healthcare programs and activities, mainly when it is based on characteristics such as sex that are protected by other civil rights statutes.

Section 1557 and Protection Against Sexual Orientation Bias

While there has been considerable debate surrounding the interpretation of Section 1557 in the courts, both parties in this case agreed that this provision prohibits bias based on sexual orientation. BCBS contended that the facts did not substantiate Murphy’s claim despite this consensus.

Denied Coverage for Fertility Treatments

Kelsey Murphy and her partner rely on fertility treatments, including in vitro fertilization, to fulfill their desire for children. However, in 2020, BCBS denied her coverage, asserting that she did not meet the policy’s requirements.

BCBS’s Definition of Infertility Under Scrutiny

Central to the lawsuit is BCBS’s 2020 policy, which defined infertility as the inability to conceive after a year of unprotected sex or “attempts to produce conception.” BCBS argued that its policy was not discriminatory, as it provided participants with several alternative methods to establish infertility.

Sexual Orientation Discrepancy in Policy

The court, however, pointed out a critical discrepancy in BCBS’s policy. The policy’s definition of unprotected sex expressly referred to sex between a man and a woman. This effectively meant that a cisgender woman would qualify for coverage if she could not conceive after one year of unprotected sex with a man. In contrast, a lesbian woman would be required to demonstrate infertility through alternative means, incurring out-of-pocket costs solely to prove that she couldn’t conceive.

Lack of Consideration for Same-Sex Relationships

The court further emphasized that BCBS’s policy could not reasonably be interpreted to suggest that an individual in a same-sex relationship could meet the policy’s requirements by simply confirming that they do not engage in heterosexual relations. Judge LaShonda A. Hunt underlined that if it were true that a covered individual in a same-sex relationship met the definition of “infertility,” BCBS should have covered Murphy’s IVF treatment instead of forcing her to pay out-of-pocket.

This court ruling not only allows Kelsey Murphy’s lawsuit to proceed but also brings into focus an important legal challenge regarding the interpretation and implementation of healthcare policies in the context of sexual orientation and discrimination. It remains to be seen how this case will influence future cases and healthcare policies nationwide.