Bostock says what it says. LGBTQ+ discrimination is sex discrimination under Title VII. Period.
A federal judge in Atlanta, however, just read it to say something else.
Tara Kulwicki is a lesbian who wants a child. Her employer’s health plan covers female infertility treatment. But to get it, a woman has to prove infertility—by having procreative sex for months without conceiving, or by paying for failed rounds of artificial insemination.
Straight women get the free option. Kulwicki has to pay.
So she sued her employers, Cobb Hospital and Wellstar Health System, claiming it’s sex discrimination to make her pay out of pocket to qualify for the same fertility benefits straight women can reach by having sex with men. The court dismissed her claim, and had to do some mental gymnastics with Title VII and Bostock to get there.
Let’s start with what the court got right. Bostock didn’t make sexual orientation a protected trait separate from sex. It gets “swept in” through the but-for test applied to sex. In other words, change the gay woman’s sex and she becomes a straight man whose attraction to women the employer tolerates. If the employer treats the gay woman differently, it’s because of sex.
The court even concedes the point in a footnote. Flip Kulwicki’s sex while holding her attraction to women constant, and she switches from homosexual to heterosexual. A “nominal quirk” of the Bostock test, the court wrote.
Except it’s not a quirk. It’s the whole point of the Bostock holding.
The court tried to use that same logic to dismiss Kulwicki’s claim. Flip her sex, and a male Kulwicki gets no infertility coverage at all, because the plan only covers women. Give him a wife but keep him unable to conceive through intercourse, and he pays for insemination just like she does. Her problem, the court said, is a trait “not unique to women or lesbians.”
But her inability isn’t a bad knee. It exists because she’s a woman attracted to women, so the plan’s free option—sex with a man—isn’t open to her. That’s exactly the discrimination Bostock forbids.
If discrimination against LGBTQ+ employees is sex discrimination, this case was wrongly decided. Not partly. Entirely. Bostock says what it says. It doesn’t come with an asterisk, and the Kulwicki court should not have applied one.
