Judge Allows LGBTQ Fertility Treatment Class Action Lawsuit Against Aetna to Proceed

March 1, 2024

San Jose, California – On February 29, 2024, U.S. District Court Judge Haywood Gillam allowed a lawsuit alleging discrimination against LGBTQ people seeking fertility treatment coverage nationwide to proceed by denying Aetna’s motion to dismiss the case.

The lawsuit, originally filed in April 2023, by the National Women’s Law Center (NWLC), Liu Peterson-Fisher LLP (now Katz Banks Kumin LLP), and Altshuler Berzon LLP, alleges that Aetna’s policy on fertility treatment coverage creates significant barriers for LGBTQ people. The policy forces them to pay more and wait longer to access the fertility benefits covered by their health plans. The lawsuit alleges that Aetna’s policy violates Section 1557 of the Affordable Care Act, which prohibits discrimination in health care based on sex, including sexual orientation and gender identity.

In denying Aetna’s motion to dismiss, Judge Gillam rejected Aetna’s argument that its fertility policy is “facially neutral,” ruling that the plaintiff has plausible claims that same-sex partners face “inherently different and more demanding burdens” under Aetna’s fertility coverage policy. Additionally, Judge Gillam rejected Aetna’s argument that the plaintiff’s spouse’s employer, as the sponsor of plaintiff’s Aetna health plan, is a necessary party that must be joined in this case in order for it to proceed.

“We are thrilled by the outcome of yesterday’s ruling. It represents a significant step forward in our efforts to guarantee LGBTQ people equal access to fertility treatment coverage,” said Alison Tanner, Senior Litigation Counsel at the National Women’s Law Center and co-lead counsel on the case. “We will continue to advocate for gender justice and fight discriminatory practices in the healthcare system.”

“The court’s ruling is a major victory for the rights of millions of Americans who are on employer-sponsored health insurance plans administered (and often designed) by companies like Aetna. Aetna tried to pass the buck to the plan sponsors, but the court reaffirmed that Aetna itself has a legal obligation under Section 1557 not to discriminate. Aetna should be held to account for its own actions, and this ruling brings us one step closer to ensuring it will be,” said Connie Chan, partner at Altshuler Berzon LLP and co-lead counsel.

“This ruling shows that we are winning this fight to ensure that Aetna provides equal access to fertility treatments to LGBTQ people,” said Rebecca Peterson-Fisher, KBK Partner and co-lead counsel. 

Peterson-Fisher began as co-lead counsel on this case while she was a partner at Liu Peterson-Fisher LLP, which merged with Katz Banks Kumin last year. This case was filed in the U.S. District Court, Northern District of California.

This lawsuit seeks damages on behalf of LGBTQ Californians harmed by Aetna’s discriminatory fertility policy, as well as to put an end to Aetna’s discriminatory policy nationwide. 

Individuals whose health plans unfairly discriminate against LGBTQ couples seeking fertility treatments can provide the attorneys with more information by emailing LGBTQFertilityLawsuit@nwlc.org or by completing this form: https://bit.ly/LGBTQFertilityLawsuit.


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