A former Manhattan district attorney and his husband have filed a historic class action lawsuit against New York City, alleging its employee health care plan discriminates against gay male couples by denying them the IVF benefits it provides other city employees.
The complaint, filed in New York federal court Thursday, is the latest effort Corey Briskin and Nicholas Maggipinto have undertaken to get the city to change its IVF policies, which they say violate federal and state civil rights laws and have forced them to put off their family plans for years.
It's the first class action lawsuit to argue that employers must provide IVF benefits to gay male employees if they offer it to others, and if successful, it could set a legal precedent for nationwide employers to extend equal fertility benefits to all their employees.
In the suit, Briskin and Maggipinto argue New York's current health care plan makes them and other gay men categorically ineligible for IVF benefits because they don't qualify with the city's definition of "infertile."
The city defines infertility as the inability to conceive a child through male-female unprotected sex for a consecutive 12 months or through intrauterine insemination. It also states single women or women with a female partner who undergo IUI without a resulting pregnancy can be defined as infertile, according to the complaint.
This definition, the couple's lawsuit states, allows female employees or male employees with female partners to "always" have access to some IVF benefits while gay male employees are "never" eligible for any IVF benefits, despite equally being incapable of conceiving a child without it.
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"As a result, the city of New York, through its healthcare plan, treats gay men worse than similarly situated women (whether they are single or in different-sex or same-sex relationships) and worse than similarly situated men in different-sex relationships," the lawsuit states. "Accordingly, the city's healthcare plan denies gay men equal treatment and makes it much harder for gay men to have biological children than other employees and their partners."
Briskin and Maggipinto's lawsuit, which also names Mayor Eric Adams and former Mayor Bill de Blasio as defendants, follows their 2022 complaint to the U.S. Equal Employment Opportunity Commission.
The couple's lawyers said the EEOC's investigation revealed that for male employees, the city will cover the cost of fertilizing eggs from a female donor using the male employee's sperm, as well as the cost of fertilizing his partner's eggs if the couple uses its own resources to retrieve them.
In contrast, the lawyers say, if a male employee like Briskin retrieves donor eggs because his partner can't produce them, the city will not offer him any cost coverage to fertilize the donor eggs using his sperm.
"Gay men are entitled to equal treatment in the workplace, including when employers like the City of New York offer IVF benefits to their employees. The City of New York is treating gay men like second-class citizens when it comes to IVF benefits," said Peter Romer-Friedman, Briskin and Maggipinto's lawyer.
Briskin served as New York County assistant district attorney from 2017 to 2022, but he still receives city benefits under COBRA, which allows employees who pay their full premium to receive their former employer's health care coverage for up to three years. But he's moved into working in the private sector for "the primary purpose" of having more income to get through the expensive IVF process.
While working under the de Blasio administration in 2021, making $75,000 a year, he asked for access to equal IVF benefits for himself and other gay male employees, "but the city refused," the lawyers state.
And after the EEOC's investigation, Briskin and his husband say new city leadership, including Adams, have continued to defend the policy, though other leaders have pushed for change.
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In 2023, the American Society of Reproductive Medicine changed its infertility definition to recognize a person's need for donors to conceive constitutes infertility. And in March, New York City Council members introduced a bill requiring IVF benefits regardless of an "infertility diagnosis." The Biden administration also extended IVF coverage to LGBTQ+ veterans and service members that same month.
"While we're prepared to fight as long as it takes to win equal treatment for gay male employees of the city of New York, we hope that the city's leaders will work with us now to reform this discriminatory policy and ensure that all city employees and their partners can access IVF," Romer-Friedman said.
A city hall spokesperson told NBC News the city will review the complaint but said the city "has been a leader in offering IVF treatments for any city employee or dependent covered by the city's health plan who has shown proof of infertility, regardless of gender identity or sexual orientation."
