Dive Brief:
- The U.S. Supreme Court’s landmark decision prohibiting employment discrimination on the basis of sexual orientation did not support a lesbian plaintiff’s argument that her employer’s infertility treatment benefits contained unlawful terms that prevented her from accessing coverage at lower personal cost to herself, a federal judge held Friday.
- The plaintiff in Kulwicki v. Cobb Hospital, Inc. claimed her employer’s requirement that employees have procreative sex without conception prior to seeking coverage discriminated against her because of her sexual orientation. The judge disagreed, holding that changing the plaintiff’s sex for the purpose of establishing a comparator could not demonstrate that she experienced disparate treatment.
- Federal courts have had to parse the implications of SCOTUS’ 2020 Bostock v. Clayton County, Ga. decision, which held that discrimination on the basis of sexual orientation or gender identity is necessarily discrimination on the basis of sex as outlined under Title VII of the 1964 Civil Rights Act.
Dive Insight:
A key contention between the parties in Kulwicki concerned Bostock’s holding, with the judge writing that while both agreed that the case controlled, “no one agrees what it means or requires.” Though the 2020 decision clarified some aspects of Title VII’s application in this area, some experts maintain that it is only a starting point for future disputes.
In Kulwicki, the plaintiff maintained that Bostock only required courts to analyze her claims through the lens of sexual orientation, independent of any analysis of sex. Her employer argued — and a magistrate judge, who nonetheless ruled in favor of the plaintiff, agreed — that courts following Bostock must switch a plaintiff’s sex in order to determine whether a challenged employment policy is discriminatory.
Judge Michael Brown of the U.S. District Court for the Northern District of Georgia agreed with the latter formulation, writing that the Supreme Court in Bostock “did not make sexual orientation (or transgender status) a protected characteristic independent of sex.” Instead, sexual orientation is “swept in” when courts determine whether a plaintiff’s sex was the but-for cause of an adverse employment decision.
“The Court cannot elevate Bostock’s statement that discrimination on the basis of sexual orientation entails discrimination on the basis of sex without considering how the Supreme Court got there,” Brown wrote. “The upshot from this discussion is clear: faithful application of Bostock requires flipping one thing — Plaintiff’s sex — and deciding whether the plan treats her differently on that basis.”
Following that formulation, Brown determined that a hypothetical male employee would not receive better treatment under the conditions of the fertility benefit, in part because the plan in question did not permit coverage of male infertility treatment.
Even if it had, a man anatomically could not take advantage of the same treatments sought by the plaintiff, and changing the type of treatment sought by the hypothetical plaintiff would amount to altering a variable under the plaintiff’s sex. This kind of alteration would not lead to a similarly situated compactor, Brown said.
The judge also rejected a second scenario proposed by the magistrate judge in which the plaintiff was compared to a hypothetical male employee whose female partner would be able to have access to the lower-cost eligibility option unavailable to the plaintiff. Such a scenario “implicates a completely different set of facts,” Brown said, and it would also introduce even more changes to the variables at play.
In holding that the plaintiff’s claims failed under Bostock, Brown relied partly upon a 2025 en banc decision of the 11th U.S. Circuit Court of Appeals in the case of a transgender female plaintiff who challenged her employer’s health insurance policy, which did not cover certain gender reassignment procedures.
The 11th Circuit held in favor of the employer in the case Lange v. Houston County, Ga. In doing so, it reversed the prior opinion of a three-judge panel of the same court. The en banc opinion stated that such a benefits policy was not discriminatory under Bostock because it did not treat any employees differently based on a protected characteristic.
Brown noted that en banc court in Lange based its analysis in part by changing the plaintiff’s sex to establish a comparator. As in Kulwicki, he wrote, the 11th Circuit found that doing so did not show disparate treatment, because the same plan would deny coverage to an employee seeking coverage procedures in order to transition from male to female.
Debate over Bostock’s protections has extended beyond the courts and into the realm of federal regulators and lawmakers as well. For instance, the U.S. Equal Employment Opportunity Commission proposed, and later rescinded, workplace harassment guidance incorporating Bostock that would have explicitly labeled as harassment certain acts affecting LGBTQ+ employees and employees who have had an abortion. The decision led Democratic lawmakers to reintroduce a bill to address such harassment in February.