Gay Couple Sues for IVF Coverage Amid Escalating Homophobic Attacks

Two New York City lawyers wanted to start a family in 2017. But they didn't meet a heteronormative definition of infertility to qualify for IVF coverage.

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Gay Couple Sues for IVF Coverage Amid Escalating Homophobic Attacks
Photo:Sarah Merians / Sarah Merians Photography

Shortly after getting married in 2016, New York City lawyers Corey Briskin and Nicholas Maggipinto began their journey to start a family, hoping to have children using in vitro fertilization. But when the couple sought coverage of IVF through Briskin’s health plan as an employee of New York City, they learned they didn’t qualify for the plan’s IVF benefits because they didn’t meet its definition of “infertile”—which was shaped by cis-heteronormative conceptions of intercourse. This essentially pushed IVF out of reach for the couple, as the process is jarringly expensive out-of-pocket.

Per the terms of Briskin’s health coverage, someone is infertile if they can’t conceive after 12 months of unprotected heterosexual sex, or for cis, gay women without male partners, multiple unsuccessful attempts at intrauterine insemination. These terms specifically exclude cis gay men from IVF benefits.

This week, Briskin and Maggipinto filed a class-action complaint with the U.S. Equal Employment Opportunity Commission, alleging that this exclusion of same-sex male couples by the city’s health plan violates state and federal civil rights. In their complaint, the couple cites the 2020 case Bostock v. Clayton County, in which the Supreme Court ruled that Title VII protects workers from being discriminated against based on their sexual orientation.

“This case represents gay men trying to explain to their employer what equality means, that it includes having equal access to the same benefits as other employees,” Peter Romer-Friedman, Briskin and Maggipinto’s lawyer and head of Gupta Wessler PLLC’s civil rights practice, told Jezebel. “It’s an outgrowth of Bostock v. Clayton.”

Workplace discrimination, Romer-Friedman notes, entails more than being fired or paid less for being gay. As anti-LGBTQ legislation and political attacks surge in state legislatures across the country, Romer-Friedman says his clients’ case carries even greater significance: We can’t ignore the more insidious, less overt attacks on LGBTQ people, either. “These policies from employers have always existed and sort of gone under the radar. Now, what our case is doing is challenging outdated norms and stereotypes about who should be in families, and what those families should look like.”

In a statement provided to Jezebel, Briskin said New York City’s IVF policy is “based on an archaic idea of what kinds of people should be biological parents—one that’s inconsistent with modern values and how our society understands equality in 2022.” Maggipinto noted that “IVF benefits are especially important to gay men, who primarily rely on IVF to conceive biological children.”

“The city’s denial of these IVF benefits to gay men is not just illegal, it’s morally wrong and unjust,” he said.

The average cost of a single IVF cycle can range from $12,000 to $17,000. But since Briskin and Maggipinto would need both an egg donor and surrogate, the process would be vastly more expensive. Surrogacy, which typically isn’t covered by insurance, can cost well above $100,000. The couple has had to delay starting their family for over five years now, without coverage of IVF services.

According to Romer-Friedman, Briskin and Maggipinto did everything they could to avoid filing their complaint to the EEOC. Just last year, they contacted the city’s Office of Labor Relations to request that it cover specific IVF services, but were told they weren’t eligible. They also contacted the city’s attorneys to demand policy change that treats gay, male employees equally for IVF benefits and received a similar answer.

Amid a rising tide of legislative attacks on queer and trans people, including criminalization of gender-affirming health care in states like Texas and Alabama and Florida’s free speech-chilling “Don’t Say Gay” law in schools, Briskin and Maggipinto’s case speaks to another important battle front in the movement for LGBTQ rights.

LGBTQ families and their family planning options have always been policed or restricted by the state, and not just where IVF benefits are concerned. Currently, just six states explicitly prohibit discrimination against same-sex couples seeking to adopt, while 11 states explicitly allow discrimination against them. Just last year, HBO’s docuseries Nuclear Family explored the explosive 1990s legal battle that resulted in a male sperm donor receiving parental rights over a lesbian couple’s child, exposing the lack of legitimacy and rights offered to same-sex couples and families.

Briskin and Maggipinto hope their case will ultimately expand fertility benefits to couples like them and prompt the EEOC to explicitly protect LGBTQ people’s Title VII rights in the workplace.

“This should prompt all employers to rethink what workplace equality really means and entails, and make their policies live up to that,” Romer-Friedman said, “and it should cause legislators across the country to legislate toward equality when it comes to fertility services.”

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