A federal judge in Georgia ruled Friday that the U.S. Supreme Court's landmark decision prohibiting employment discrimination on the basis of sexual orientation did not support a lesbian plaintiff's claim that her employer's infertility treatment benefits contained unlawful terms that blocked her from accessing coverage at lower personal cost.

Judge Michael Brown of the U.S. District Court for the Northern District of Georgia held in Kulwicki v. Cobb Hospital, Inc. that switching the plaintiff's sex to establish a comparator — the analytical move he said Bostock v. Clayton County, Ga. requires — could not demonstrate that she experienced disparate treatment. For benefits leaders, the decision offers a template for how courts are testing fertility and health plan design challenges under Title VII of the 1964 Civil Rights Act, and it arrives as similar litigation over plan exclusions continues to move through the federal courts.

The plaintiff challenged her employer's requirement that employees have procreative sex without conception prior to seeking fertility coverage, arguing the condition discriminated against her because of her sexual orientation. The case turned on how to apply the Supreme Court's 2020 decision in Bostock, which held that discrimination based on sexual orientation or gender identity is necessarily discrimination on the basis of sex under Title VII.

The parties could not agree on what Bostock means in practice. "No one agrees what it means or requires," Brown wrote of the controlling precedent, even though both sides accepted that it governed the case.

The plaintiff maintained that Bostock required courts to analyze her claims solely through the lens of sexual orientation, independent of any analysis of sex. Her employer argued — and a magistrate judge agreed, even while ruling in the plaintiff's favor on that procedural point — that courts must switch a plaintiff's sex to determine whether a challenged policy is discriminatory.

Brown sided with the employer's formulation. The Supreme Court in Bostock, he wrote, "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."

Applying that test, Brown found that a hypothetical male employee would not receive better treatment under the plan. In part, that was because the plan did not permit coverage of male infertility treatment. Even if it had, a man anatomically could not undergo the same treatments the plaintiff sought, and changing the type of treatment sought would amount to altering a variable tied to the plaintiff's sex — which would not produce a similarly situated comparator.

Brown also rejected a second scenario proposed by the magistrate judge, in which the plaintiff would be compared to a hypothetical male employee whose female partner could access the lower-cost eligibility option unavailable to the plaintiff. That scenario "implicates a completely different set of facts," Brown said, and would introduce additional changes to the variables at play.

In reaching his holding, Brown leaned on the 11th U.S. Circuit Court of Appeals' 2025 en banc decision in Lange v. Houston County, Ga., a case brought by a transgender female plaintiff who challenged her employer's health insurance policy excluding certain gender reassignment procedures. The en banc court ruled for the employer, reversing an earlier three-judge panel opinion, and held that the policy was not discriminatory under Bostock because it did not treat any employees differently based on a protected characteristic.

Brown noted that the Lange court likewise established a comparator by changing the plaintiff's sex and found no disparate treatment, because the same plan would deny coverage to an employee seeking procedures to transition from male to female.

The dispute over Bostock's reach extends beyond the courtroom. 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. That rescission prompted Democratic lawmakers to reintroduce anti-harassment legislation in February.

While the 2020 decision clarified some aspects of Title VII's application, some experts maintain it is only a starting point for future disputes. Employers administering fertility and gender-affirming care benefits in the 11th Circuit should expect courts to continue testing discrimination claims through the sex-flip comparator method, at least until the Supreme Court or Congress resolves the questions Kulwicki leaves open.