Our partners, Mark R. Miller and Molly Condon Wells, are at the forefront of groundbreaking litigation challenging Blue Cross Blue Shield’s (BCBS) fertility treatment coverage policy. This case marks a significant step in addressing discrimination based on sexual orientation, with a recent ruling allowing the litigation to proceed—a first of its kind in the USA under this theory of liability. 

Case Overview: 

The lawsuit centers on BCBS’s fertility treatment coverage policy, alleged to violate the Affordable Care Act (ACA) by discriminating against individuals based on sexual orientation. Representing the plaintiffs, Wallace Miller is arguing that BCBS’s policy unfairly requires proof of infertility through a narrow lens, ultimately disadvantaging non-heterosexual individuals seeking coverage for fertility treatments. 

Discriminatory Policy: 

BCBS’s policy mandates that individuals must demonstrate their inability to conceive after a year of unprotected sex. The controversy arises in the policy’s definition of “unprotected sex” as explicitly between a man and a woman. This definition sets the stage for unequal treatment, particularly impacting non-heterosexual women who, under these requirements, face additional financial burdens to prove infertility compared to their heterosexual counterparts. 

Landmark Ruling: 

A U.S. District Judge’s recent ruling represents a groundbreaking moment in the case, as it allows the litigation to proceed—the first motion to dismiss ruling of its kind in the country under this theory of liability. This decision signifies a judicial acknowledgment of the merits of the case and the potential implications for challenging discriminatory policies within healthcare coverage. 

Plaintiff’s Experience: 

The plaintiff, an Illinois woman, faced denial of fertility treatment coverage in 2020 due to not meeting the policy’s stringent requirements for proving infertility. This denial, rooted in the policy’s heteronormative definition of unprotected sex, places an additional burden on non-heterosexual women to navigate out-of-pocket costs for infertility proof that heterosexual women do not bear. 

What’s Next: 

As the case moves forward, we are poised to further challenge BCBS’s discriminatory policy. The outcome of this litigation could set a precedent, influencing how healthcare providers approach fertility treatment coverage and potentially reshaping policies to ensure equal access for individuals of all sexual orientations. 

At Wallace Miller, we believe in using the law to champion justice and challenge discriminatory practices. The BCBS discrimination case underscores our commitment to advocating for equal rights in healthcare. As Mark R. Miller and Molly Condon Wells continue their legal pursuit, we remain dedicated to breaking new ground in the fight against discrimination, leaving a lasting impact on healthcare policies for generations to come.