Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—N.D. Ga.: Lesbian employee’s challenge to fertility benefits plan failed under Bostock, (Sep 29, 2026)

By Kathleen Kapusta, J.D.

“Though everyone agrees Bostock controls, no one agrees what it means or requires.”

Dismissing a lesbian employee’s Title VII sex discrimination claims against her hospital employers based on their medical insurance plan, which provides treatment for female infertility for a woman who has engaged in procreative sex for some time without conception or who has paid for other reproductive treatments that failed, a federal court in Georgia rejected a magistrate’s Report and Recommendation. The magistrate applied Bostock’s but-for test and concluded that the insurance plan treated the employee differently because of her sex and sexual orientation. But under Bostock’s test, said the court, “sex simply is not a but-for cause” of any differential treatment (Kulwicki v. Cobb Hospital, Inc., No. 1:24-cv-4658-MLB (N.D. Ga. Sept. 25, 2026)).

Believing her employers’ insurance plan discriminated against her because of her sex and sexual orientation, the employee sued them on behalf of herself and a class of insureds under Title VII asserting both disparate treatment and disparate impact claims. Arguing that the but-for test in Bostock v. Clayton Cnty, Ga., showed her claims failed as a matter of law, the employers moved to dismiss.

Two scenarios. The magistrate, recommending that the court deny the motion, applied Bostock’s but-for test by flipping the employee’s sex from female to male to see whether she plausibly alleged sex-based discrimination. The magistrate advanced two alternative scenarios that supposedly showed discrimination: (1) a hypothetical male employee need not meet any definition of “infertility” to obtain coverage (whereas the employee here had to), or (2) a hypothetical male employee’s spouse could get coverage by engaging in procreative sex for some time (whereas the employee here and her hypothetical female spouse could not and had to pay for procedures).

Definition. But both scenarios, said the court, misapply Bostock. As to the first, the magistrate found the plan discriminated on its face because “[m]en need not meet any definition of ‘infertility’ to qualify for [fertility] benefits” but women must by “demonstrat[ing] an inability to get pregnant after 6 or 12 months” of procreative sex or “6 or 12 cycles of artificial insemination.” The employee, however, did not cite any plan provision in support of her contention that men do not need to meet any definition of infertility to qualify for coverage. Rather, she argued that since the plan only defines infertility in terms of women, men “need not meet any definition of ‘infertility’ to access benefits at all” or, alternatively, would do so “by showing a female partner meets the definition.”

But the first alternative, said the court, assumed benefits for male infertility and she cited no portion of the plan providing treatment for male infertility and the second would establish only female infertility under the plain language of the plan. Because she cited no portion of the plan providing treatment for male infertility, she did not plausibly allege men receive such coverage with fewer barriers than she faces. Nor did the court accept her allegations about coverage for male infertility, finding they were legal conclusions about contract terms cloaked as facts.

Treatment. The court also found her allegation about male infertility coverage conflicted with the unambiguous language of the plan, which was attached to the complaint, and which only discusses treatment for female infertility. Because the plan permits no coverage for male infertility treatment, the magistrate’s first scenario failed to demonstrate that a hypothetical male employee would receive better coverage than the employee here receives.

One thing at a time. Even assuming coverage for male infertility, the court found the first hypothetical scenario violates Bostock because it changes more than “one thing at a time.” Flipping only the employee’s sex and keeping everything else fixed, including her desire to access intrauterine insemination and in vitro fertilization treatments, the court found this would require it to change both her sex and the kind of treatment she seeks. “For example,” the court explained, “if a hypothetical male could not individually receive artificial insemination or intrauterine insemination, he would be seeking some kind of treatment specific to male infertility. That’s more than ‘one [change] at a time.’”

In sum, said the court, because the employee’s allegations did not suggest how men could access infertility coverage, the plan appeared to leave the hypothetical male version of her worse off as he would get no coverage or would be seeking a different kind of fertility treatment. Accordingly, the court rejected the magistrate’s conclusion that the first scenario showed sex-based discrimination.

Second scenario. Regarding the second scenario—a hypothetical male employee whose spouse could get coverage by engaging in procreative sex for some time—the magistrate found it met the but-for test “because changing Plaintiff’s sex to male would result in a different choice by the employer—a male employee and his covered female partner would have the cost-free option of meeting the plan’s infertility definition.” But that scenario, said the court, implicated a completely different set of facts than those alleged by the employee, who did not allege she had a spouse or a dependent. Rather, she claimed she received less favorable treatment based on her own sex and sexual orientation, not that her spouse received less favorable treatment based on the employee’s sex or the spouse’s own sex.

This scenario, said the court, was not only unfaithful to the employee’s own complaint, but also it violated Bostock’s premise to “change one thing at a time” and keep all else the same. In addition to switching the employee’s sex, the second scenario also changes who receives the treatment under the plan. “In other words, the hypothetical quietly shifts the focus away from how Plaintiff herself may access the benefits for her own infertility.”

Lange. The magistrate, in support of the second scenario, cited the Eleventh Circuit’s 2025 decision in Lange v. Houston Cnty, in which a transgender woman sought insurance coverage for a male-to-female sex change surgery through her employer’s policy that excluded coverage for the procedure. The magistrate explained that the appeals court’s recent application of Bostock contemplated this shift to the dependent’s treatment because “it looked to the anatomically-correct, opposite-gender dependent of the flipped person.”

But that scenario, said the court, was not applicable here as the employee’s claim arose only from the plan’s differential treatment of her and the putative class who personally sought treatment, not the differential treatment of their spouses.

Additional change. The court also found the scenario changed another thing—the employee’s inability to “conceive a child by engaging in sexual intercourse” as it made the hypothetical male employee’s spouse capable of conceiving a child by engaging in sexual intercourse. If it were to switch both the employee’s sex and the recipient of fertility treatments to her hypothetical spouse, the proper comparison, reasoned the court, would be a hypothetical male employee who, for whatever reason, cannot have procreative sex and seeks fertility treatment for a female dependent.

In that case, the hypothetical male employee would, like the employee here, only be able to access benefits after paying for failed cycles of artificial insemination for his spouse. “And this,” the court observed, “exposes the causal link—[the employee] cannot access benefits because she cannot have procreative sex, a characteristic not unique to women or lesbians. Title VII does not protect against that type of differential treatment.” As a result, the court also rejected the magistrate’s conclusion that the second scenario showed sex-based discrimination.

Application of Bostock. Applying Bostock’s but-for test here, with particular attention to Lange, the court found Lange’s but-for analysis provided three lessons—a court must only flip the sex of the plaintiff under Bostock; courts should keep the specific details about the person the same, including the specific procedures that person seeks; and, the impossibility of a hypothetical person’s ability to obtain the specific treatment does not suggest a flawed comparator.

“Those teachings make plain the proper Bostock analysis,” the court wrote, noting that the employee here is a female attracted to females seeking to access intrauterine insemination and invitro fertilization for herself. “Change her sex to male, keep all else the same, and she becomes a male seeking access to intrauterine insemination and invitro fertilization for himself. Would the plan treat the hypothetical male better in the way she alleges? No. As a man, she would not receive that treatment.”

Stating again that the employee did not plausibly allege that a man would have access to any fertility treatments, the court noted that isolating sex as a dependent variable did not place her in a better situation. “In other words, the Bostock test shows ‘sex is simply not a but-for cause’ of any differential treatment.” Accordingly, the court dismissed the employee’s claims and dismissed without prejudice the putative class claims.

The case is No. 1:24-cv-4658-MLB.

Judge: Brown, M.

Attorneys: Colleen E. Ramage (Ramage Lykos) for Tara M. Kulwicki. Andrew L. Scroggins (Seyfarth Shaw) for Cobb Hospital, Inc.

Companies: Cobb Hospital, Inc.; Wellstar Health System, Inc.

Cases: SexDiscrimination Discrimination PensionBenefitPlans ClassActions GeorgiaNews