Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`EMMA GOIDEL, on behalf of herself and all
`others similarly situated,
`
`
`
`Plaintiff,
`
`-against-
`AETNA INC.;
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`CLASS ACTION
`COMPLAINT
`JURY TRIAL DEMANDED
`
`1.
`
`Plaintiff Emma Goidel, by and through her attorneys, Emery Celli
`
`Brinckerhoff Abady Ward & Maazel LLP and the National Women’s Law Center, on behalf of
`
`herself and others similarly situated, for her Complaint alleges, upon personal knowledge as to
`
`herself and information and belief as to other matters, as follows:
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`PRELIMINARY STATEMENT
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`2.
`
`This class action challenges Aetna’s discriminatory health insurance
`
`policy that, on its face, engages in sex discrimination by denying LGBTQ (lesbian, gay, bisexual,
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`transgender, queer, intersex, or non-binary) individuals equal access to fertility treatment.
`
`3.
`
` Plaintiff Emma Goidel and her spouse, like many LGBTQ individuals,
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`want to have children. And, like many LGBTQ individuals, Ms. Goidel cannot conceive through
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`intercourse with her partner and can become pregnant only through fertility treatments such as
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`intrauterine insemination (“IUI”) and in vitro fertilization (“IVF”).
`
`4.
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`Ms. Goidel and her spouse are enrolled in Aetna’s Student Health Plan for
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`Columbia University (“the Policy”), which provides broad coverage for IUI and IVF.
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`

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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 2 of 23
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`5.
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`Aetna’s Policy provides immediate coverage, without any out-of-pocket
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`cost, to individuals based on their representation that they have not gotten pregnant after having
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`unprotected sex for 12 months.
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`6.
`
`But Aetna’s same Policy requires individuals who cannot conceive
`
`through intercourse due to their sexual orientation or gender identity to pay out of pocket for 12
`
`cycles of IUI before Aetna will provide them with coverage for fertility treatments.
`
`7.
`
`Because of Aetna’s Policy, Ms. Goidel and her spouse, and all other
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`similarly situated LGBTQ individuals, have been forced to pay tens of thousands of dollars out
`
`of pocket—in Ms. Goidel’s case, nearly $45,000 for one successful pregnancy—that others are
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`not required to pay in order to become pregnant.
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`8.
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`Aetna’s Policy language openly discriminates against Plaintiff and other
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`LGBTQ individuals based on their sexual orientation and gender identity and violates their rights
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`under Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), the New York
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`State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law
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`(“NYCHRL”).
`
`9.
`
`Aetna’s discriminatory Policy is an illegal tax on LGBTQ individuals that
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`denies the equal rights of LGBTQ individuals to have children.
`
`10.
`
`11.
`
`At best, these individuals incur great costs due to Aetna’s Policy language.
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`At worst, these exorbitant costs are prohibitive and entirely prevent people
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`who are unable to shoulder them—disproportionately LGBTQ people of color—from becoming
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`pregnant and starting a family.
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`12.
`
`In addition to financial injury, Aetna’s Policy has caused Ms. Goidel and
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`other LGBTQ individuals to suffer significant physical and emotional harm.
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`
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`2
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 3 of 23
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`13.
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`Aetna’s discrimination is deliberate. It has continued to enforce this
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`discriminatory Policy against Ms. Goidel and other LGBTQ individuals despite the passage of
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`Section 1557, despite the clear definition of sex discrimination under federal and state law to
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`include LGBTQ individuals, and despite being specifically informed by the New York State
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`agency that regulates Aetna and other health insurance issuers that such health insurance policies
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`constitute illegal discrimination on the basis of gender identity and sexual orientation.
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`14.
`
`Plaintiff brings this case now, on behalf of herself and all others who are
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`unable to conceive through intercourse due to their sexual orientation or gender identity, to end
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`Aetna’s willful disregard of federal and state nondiscrimination law by prohibiting Aetna from
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`implementing and enforcing this discriminatory policy in its New York student health plans.
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`JURISDICTION AND VENUE
`
`15.
`
`This Court has jurisdiction under 28 U.S.C. § 1331. This action arises
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`under 42 U.S.C. § 18116(a).
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`16.
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`This Court has supplemental jurisdiction over the pendent state and city
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`law claims under 28 U.S.C. § 1367(a).
`
`17.
`
`The acts complained of occurred in the Southern District of New York,
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`and venue is lodged in this Court under 28 U.S.C. § 1391(b).
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`THE PARTIES
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`18.
`
`Plaintiff EMMA GOIDEL is a 31-year-old woman and is a citizen of the
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`United States. At all relevant times, Ms. Goidel has been a resident of New York State, and she
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`has had health insurance provided through the Columbia University student health plan supplied
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`and administered by Aetna, Inc.
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`19.
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`Defendant AETNA INC. (“Aetna”) is a company incorporated under the
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`laws of the State of Connecticut and whose principal place of business is in Hartford,
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`
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`3
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 4 of 23
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`Connecticut. Aetna is an insurance provider that supplies and administers health insurance plans
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`for educational institutions, employers, and individuals in New York State. Aetna operates its
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`business throughout the United States, including in the State of New York.
`
`20.
`
`Aetna receives federal financial assistance including through credits,
`
`subsidies, and/or contracts of insurance. For example, Aetna provides coverage of medical
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`services in exchange for payments through Medicaid. At all relevant times, Aetna has provided
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`and administered student health plans for all Columbia University students, spouses, and
`
`dependents, throughout all Columbia University schools, who choose to enroll in health
`
`insurance through the university. Aetna also provides and administers student health plans for
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`numerous other colleges and universities in the State of New York.
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`FACTUAL ALLEGATIONS
`
`I.
`
`Aetna’s Discriminatory Policy
`
`21.
`
`Since May of 2019, Ms. Goidel and her spouse have been enrolled in the
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`Policy.1
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`22.
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`At all relevant times, Ms. Goidel’s spouse was a Columbia University
`
`student, and Ms. Goidel was enrolled under the Policy as her spouse’s dependent.
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`23.
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`Under the Policy, Aetna covers “services for the diagnosis and treatment
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`(surgical and medical) of infertility” for enrollees between the ages of 21 and 44 (inclusive).
`
`24.
`
`“Infertility” is defined under the Policy as:
`
`a disease or condition characterized by the incapacity
`to impregnate another person or to conceive, defined
`by the failure to establish a clinical pregnancy after
`12 months of
`regular, unprotected
`sexual
`intercourse or therapeutic donor insemination, or
`after six (6) months of regular, unprotected sexual
`
`1 See Aetna, Aetna Student Health Plan Design and Benefits Summary: Columbia University, Policy No. 704502
`(Policy Year 2020–2021), https://www.aetnastudenthealth.com/schools/columbia/pdbs2021.pdf.
`4
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 5 of 23
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`intercourse or therapeutic donor insemination for a
`female 35 years of age or older.
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`This means that there are only two ways to meet Aetna’s definition of
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`25.
`
`infertility for those under age 35: (1) “12 months of regular, unprotected sexual intercourse” or
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`(2) 12 months of “therapeutic donor insemination” (e.g., IUI2). For those age 35 and over, the
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`same conditions apply, but the number of months is reduced to 6.
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`26.
`
`Under this Policy, an individual who has the capacity to become pregnant
`
`through sexual intercourse with their partner can demonstrate infertility by simply representing
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`to Aetna that they have had 12 or 6 months, depending on their age, of “regular, unprotected
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`sexual intercourse” without a pregnancy.
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`27.
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`Aetna imposes no out-of-pocket cost for such individuals to meet Aetna’s
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`definition of infertility.
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`28.
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`But for Ms. Goidel and other LGBTQ individuals, the only way to meet
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`Aetna’s definition of infertility is to pay for 12 or 6 months of IUI, depending on their age.
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`29.
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`Aetna therefore imposes significant out-of-pocket costs on such LGBTQ
`
`individuals that it does not impose on others before allowing LGBTQ individuals to qualify for
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`Aetna’s insurance coverage for fertility treatment.3
`
`30.
`
`Once a member qualifies for coverage under the Policy, Aetna covers
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`“basic infertility services.”
`
`
`2 Intrauterine insemination (“IUI”) “is a procedure that places sperm past the cervix and in a woman’s uterus around
`the time of ovulation.” Intrauterine Insemination (IUI), Am. Soc’y for Reprod. Med.,
`https://www.reproductivefacts.org/news-and-publications/patient-fact-sheets-and-booklets/documents/fact-sheets-
`and-info-booklets/intrauterine-insemination-iui/ (last revised 2016).
`3 For purposes of this complaint, the terms “fertility” services or treatment and “infertility” services or treatment will
`be used interchangeably. Plaintiff seeks equal access to services that will enable her to get pregnant, which she will
`refer to as fertility services or treatments, but those services are defined by Aetna to be “infertility” services or
`treatments as part of its infertility program.
`
`
`
`5
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`31.
`
`“Basic infertility services” include testing and evaluation services such as
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`“[i]nitial evaluation,” “[l]aboratory evaluation,” “[e]valuation of ovulatory function,”
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`“[e]ndometrial biopsy,” “[p]elvic ultra sound,” “[h]ysterosalpingogram,” “[s]ono-hystogram,”
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`and “[b]lood tests.”
`
`32.
`
`Under the Policy, if basic infertility services do not result in increased
`
`fertility, Aetna covers “comprehensive infertility services.”
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`33.
`
`“Comprehensive infertility services” include “[o]vulation induction and
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`monitoring,” “[p]elvic ultrasound,” “[a]rtificial insemination,”4 “[h]ysteroscopy,”
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`“[l]aparoscopy,” and “[l]aparotomy.”
`
`34.
`
`Under the Policy, Aetna also covers “advanced infertility services” for
`
`those who demonstrate “infertility.” The Policy does not set forth any other prerequisites for
`
`coverage of advanced infertility services.
`
`35.
`
`“Advanced infertility services” include “[t]hree (3) cycles per lifetime of
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`in vitro fertilization,”5 “[g]amete intrafallopian tube transfers or zygote intrafallopian tube
`
`transfers,” “[c]osts for an ovum donor or donor sperm,” “[s]perm storage costs in connection
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`with in vitro fertilization,” and “[c]ryopreservation and storage of embryos in connection with in
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`vitro fertilization.”
`
`
`4 “Artificial insemination” includes “intra-uterine insemination [IUI].” Aetna, Infertility, Clinical Policy Bulletin
`No. 0237 at Sec. IV.A. (last reviewed Oct. 27, 2020), http://www.aetna.com/cpb/medical/data/300_399/0327.html
`5 In vitro fertilization (“IVF”) is “method of assisted reproduction that involves combining an egg with sperm in a
`laboratory dish. If the egg fertilizes and begins cell division, the resulting embryo is transferred into the woman’s
`uterus where it will hopefully implant in the uterine lining and further develop.” In Vitro Fertilization (IVF), Am.
`Soc’y for Reprod. Med., https://www.reproductivefacts.org/topics/topics-index/in-vitro-fertilization-ivf/ (last visited
`Aug. 17, 2021).
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`6
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`II.
`
`As a Same-Sex Couple, Ms. Goidel and Her Partner Need Fertility Treatments
`to Become Pregnant and Have Their First Child.
`
`36. Ms. Goidel and her partner have long planned for a family with a total of
`
`
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`four children.
`
`37.
`
`Because Ms. Goidel cannot conceive through sexual intercourse with her
`
`partner, she requires fertility treatments, specifically IUI and/or IVF, to get pregnant for all their
`
`children.
`
`time.
`
`38.
`
`In 2018, Ms. Goidel and her spouse decided to start their family.
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`39. Ms. Goidel and her partner were not covered by Aetna’s Policy at that
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`40.
`
`As a result of fertility treatments they obtained, Ms. Goidel successfully
`
`became pregnant and gave birth to their first child in the summer of 2019.
`
`III. Aetna Repeatedly Denies Coverage to Ms. Goidel for Her Second Pregnancy
`Based on its Discriminatory Policy.
`
`41.
`
`Since May of 2019, Ms. Goidel and her partner have been covered by
`
`
`
`Aetna’s Policy, and they will remain enrolled in the Policy until at least December 2022.
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`42.
`
`In 2020, Ms. Goidel and her spouse decided to start pursuing fertility
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`treatments for Ms. Goidel to become pregnant again and have their second child.
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`43.
`
`In September 2020, in advance of attempting any IUI cycles, Ms. Goidel’s
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`doctor submitted a claim to Aetna for preauthorization for six cycles of IUI under the Policy.
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`44.
`
`A representative from Aetna called Ms. Goidel to determine her eligibility
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`for enrollment in the infertility program under the Policy.
`
`45.
`
`On September 21, 2020, Aetna formally denied Ms. Goidel’s enrollment
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`in the infertility program, and thus coverage of the IUI services, because she had not
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`7
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 8 of 23
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`demonstrated that she was “unable to get pregnant after egg and sperm contact by either: (1)
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`frequent, unprotected sex or (2) donor insemination if there is no male partner for at least (a)
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`one year at any age, or (b) six months if older than 35.”
`
`46.
`
`Aetna’s denial letter stated that in making its denial decision, it used
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`Aetna’s Clinical Policy Bulletin (“CPB”) Criteria for Infertility. The CPB states that
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`a member is considered infertile if he or she is unable to
`conceive or produce conception after 1 year of frequent,
`unprotected heterosexual sexual intercourse, or 6 months
`of frequent, unprotected heterosexual sexual intercourse if
`the female partner is 35 years of age or older. Alternately, a
`woman without a male partner may be considered infertile
`if she is unable to conceive or produce conception after at
`least 12 cycles of donor insemination (6 cycles for women
`35 years of age or older).6
`
`47.
`
`As a result of Aetna’s discriminatory denial of coverage, Ms. Goidel and
`
`
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`her partner had to pay up front and out of pocket for fertility treatments.
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`48.
`
`In the fall of 2020, Ms. Goidel attempted two IUI cycles.
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`49. Ms. Goidel paid a total of $8,939 out of pocket for these two IUI cycles.
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`50.
`
`The costs for IUI treatment include payments for donor sperm, payments
`
`to the fertility clinic for IUI treatments, and payments for prescription medications used as part
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`of the IUI process.
`
`51.
`
`52.
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`The first attempt in September was unsuccessful.
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`On the second attempt in October, Ms. Goidel became pregnant, but she
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`then experienced a miscarriage and lost that pregnancy.
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`53. Ms. Goidel took a month off to recover physically and emotionally from
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`the miscarriage.
`
`
`6 Aetna, Infertility, Clinical Policy Bulletin No. 0237 (last reviewed Oct. 27, 2020),
`http://www.aetna.com/cpb/medical/data/300_399/0327.html.
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`54.
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`In February 2021, Ms. Goidel attempted her third IUI cycle.
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`55. Ms. Goidel paid another $5,169 for this third IUI cycle.
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`56.
`
`Her third IUI attempt was not successful, and she did not become
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`pregnant.
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`57.
`
`In March 2021, Ms. Goidel appealed Aetna’s September 2020 denial of
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`preauthorization for six IUI cycles.
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`58.
`
`In her appeal, Ms. Goidel explicitly stated that Aetna’s denial of coverage
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`discriminated against her on the basis of her sexual orientation. Ms. Goidel called Aetna’s
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`attention to a directive from the state agency that regulates Aetna, the New York Department of
`
`Financial Services (“DFS”).
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`59.
`
`DFS had just issued a bulletin in February 2021 making explicit that an
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`insurance policy requiring LGBTQ+ individuals to pay out of pocket as a precondition for
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`fertility treatments constitutes discrimination under N.Y. Ins. Law §§ 3221 and 4303.
`
`60.
`
`DFS’s directive specifically noted:
`
`It has come to the Department’s attention that some issuers
`may be requiring some individuals to incur costs, due to
`their sexual orientation or gender identity, that heterosexual
`individuals do not incur in order to meet the definition of
`infertility. In particular, some issuers have denied coverage
`of basic infertility treatments, such as intrauterine
`insemination procedures, for some individuals who are
`unable to conceive without such treatment due to their
`sexual orientation or gender identity. These individuals
`may incur the high costs of basic infertility treatments for
`up to 12 months to demonstrate infertility in order to
`qualify for insurance coverage due to their sexual
`orientation or gender identity. This results in unfair
`discrimination for individuals due to their sexual
`
`
`
`9
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`orientation or gender identity, which is prohibited by
`Insurance Law §§ 3221(k)(6)(C)(viii) and 4303(s)(3)(H).7
`
`DFS’s directive ordered that insurance “issuers must provide immediate
`
`61.
`
`coverage for basic infertility treatments (e.g., intrauterine insemination procedures) that are
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`provided to individuals covered under an insurance policy or contract who are unable to conceive
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`due to their sexual orientation or gender identity in order to prevent discrimination.”8
`
`62.
`
`63.
`
`pregnant.
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`In March 2021, Ms. Goidel attempted her fourth IUI cycle.
`
`Her fourth IUI attempt was unsuccessful, and Ms. Goidel did not become
`
`64.
`
`At this point, Ms. Goidel’s doctor raised the possibility of using IVF
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`instead of IUI because it would have a greater chance of success.
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`65.
`
`Because of Aetna’s discriminatory Policy, Ms. Goidel and her partner
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`were faced with a choice: pay the steep out-of-pocket cost for a single cycle of IVF (with an
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`increased chance of success) or continue paying the lower per-cycle out-of-pocket costs for
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`additional rounds of IUI (with a decreasing rate of success).
`
`66.
`
`At this point, Ms. Goidel and her spouse decided to try one more round of
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`IUI because IVF was significantly more expensive, and Aetna refused to pay for any of these
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`treatments.
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`pregnant.
`
`67.
`
`68.
`
`In April 2021, Ms. Goidel attempted her fifth IUI cycle.
`
`Her fifth IUI attempt was unsuccessful, and Ms. Goidel did not become
`
`
`7 Lisette Johnson, Ins. Circular Letter No. 3, Health Insurance Coverage of Infertility Treatments Regardless of
`Sexual Orientation or Gender Identity, N.Y. Dep’t of Fin. Servs. (Feb. 23, 2021),
`https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2021_03.
`8 Id.
`
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`10
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`69. Ms. Goidel paid a total of $8,454.98 for these two treatment cycles.
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`70.
`
`On April 19, 2021, Aetna sent Ms. Goidel a final appeal determination
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`upholding its September 2020 denial. The letter again referenced the CPB and stated that Ms.
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`Goidel did not meet the criteria of being “unable to get pregnant after egg and sperm contact by
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`either: (1) frequent, unprotected sex of (2) donor insemination if there is no male partner for at
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`least (a) one year at any age, or (b) six months if older than 35.”
`
`71.
`
`On April 20, 2021, Aetna sent a separate letter responding to Ms. Goidel’s
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`allegation of discrimination. The letter did not explain how Aetna’s Policy was not
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`discriminatory and did not address the recent DFS directive. It summarily stated that it was
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`“guided by its Clinical Policy Bulletins” and was in “compli[ance] with federal civil rights
`
`laws.”
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`72.
`
`On April 23, 2021, Aetna sent a separate letter denying coverage for
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`fertility medication prescriptions.
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`73.
`
`After seven months, five cycles of IUI, one miscarriage, significant
`
`emotional distress, and over $20,000 paid out of pocket, Ms. Goidel and her spouse decided,
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`upon consulting with their doctor about the success rate of IVF versus IUI, to change course and
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`try IVF.
`
`to Aetna.
`
`74.
`
`In May 2021, Ms. Goidel’s doctor submitted a claim for coverage of IVF
`
`75.
`
`A representative from Aetna again called Ms. Goidel to determine her
`
`eligibility under the Policy.
`
`76.
`
`On May 14, 2021, Aetna formally denied coverage for Ms. Goidel’s IVF
`
`treatment because she did not meet the requirement “for a member under 35 years of age” of
`
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`11
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 12 of 23
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`being “unable to conceive or produce conception after at least one year despite (1) frequent,
`
`unprotected heterosexual sexual intercourse, or (2) at least 12 cycles of donor insemination if
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`there is no male partner.” Aetna again noted that it used its CPB for Infertility in making this
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`determination.
`
`77.
`
`As a direct result of Aetna’s discriminatory denial of coverage Ms. Goidel
`
`had to pay $20,487.75 out of pocket to undergo IVF treatment.
`
`78.
`
`79.
`
`In May 2021, Ms. Goidel began IVF.
`
`The IVF process is physically grueling, involving surgical egg retrieval,
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`months of hormonal treatment via self-administered medication and injections, and frequent
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`medical monitoring.
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`80.
`
`In July 2021, Ms. Goidel was overjoyed to learn she was pregnant as a
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`result of IVF. But a few days later, she experienced an early miscarriage.
`
`81.
`
`Later that month, Ms. Goidel and her partner decided that, rather than
`
`attempt another physically and financially taxing IVF so soon, Ms. Goidel would attempt her
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`sixth IUI cycle.
`
`82. Ms. Goidel’s sixth IUI cycle was successful; she became pregnant.
`
`83. Ms. Goidel paid a total of $1,810 for this IUI cycle.
`
`84.
`
`At the time of filing this Complaint, Ms. Goidel is in the early stages of
`
`pregnancy and is seven weeks pregnant.
`
`85.
`
` Sadly, because Ms. Goidel has experienced two miscarriages in
`
`consecutive pregnancies, the risk of a third miscarriage is now significantly higher. Should Ms.
`
`Goidel endure another miscarriage, she will need to begin either IUI or IVF and incur its costs—
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`financial, physical, and emotional—all over again.
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`12
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 13 of 23
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`86.
`
`At the time of filing this Complaint, Ms. Goidel and her partner are paying
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`to store one embryo that remains following Ms. Goidel’s IVF process and one vial of sperm, and
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`they plan to use them in the future to fulfill their plan to have more children.
`
`IV. Aetna Has Caused Ms. Goidel Emotional Distress and Physical and Financial
`Injury.
`
`
`
`87. Ms. Goidel has been injured by Aetna’s discriminatory Policy that
`
`requires her and other individuals, based on their sexual orientation or gender identity, to pay out
`
`of pocket for fertility treatments as a prerequisite to receiving coverage for such services.
`
`88. Ms. Goidel has incurred tens of thousands of dollars in medical costs for
`
`the six IUI cycles and one IVF cycle that she has undergone while under Aetna’s Policy.
`
`89. Ms. Goidel has endured great emotional distress in having to choose a
`
`course of treatment based on cost, rather than based on her personal and medical circumstances
`
`in consultation with her doctor. Had Aetna covered IUI and IVF for Ms. Goidel from the start,
`
`she would have been able to choose the best course of treatment for her based on her personal
`
`circumstances, in consultation with her doctor. Instead, because of its discriminatory Policy,
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`Aetna has forced Ms. Goidel to undertake immense financial, physical, and emotional costs.
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`90.
`
`For example, Ms. Goidel delayed trying IVF because of its cost. After her
`
`fourth cycle of IUI, her doctor presented IVF as an option based on her medical history and
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`because IVF had a greater likelihood of success than IUI. But due to the immense out-of-pocket
`
`costs of IVF, Ms. Goidel delayed this more effective treatment.
`
`91.
`
`Delays in medically recommended treatment have likely resulted in Ms.
`
`Goidel becoming pregnant at a more advanced age than she would have absent Aetna’s Policy.
`
`92.
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`The delays caused by Aetna’s discriminatory Policy threaten the health of
`
`Ms. Goidel and of her future children, and her ability to get pregnant again in the future. That is
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 14 of 23
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`because it becomes increasingly difficult to get pregnant with age. Pregnancy also becomes
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`increasingly dangerous to a pregnant person’s health, as well as to the health of the fetus, with
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`age.
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`93. Ms. Goidel has endured great emotional distress with each failed attempt
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`to get pregnant.
`
`94.
`
`The knowledge that she was being subjected to unequal, discriminatory
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`treatment by having to pay for these attempts at pregnancy compounded this emotional distress.
`
`95.
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`Aetna’s discriminatory Policy is causing Ms. Goidel ongoing emotional
`
`distress because she knows that if she has another miscarriage, or when she gets pregnant with
`
`other children, she will again have to confront Aetna’s discriminatory Policy and will again be
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`forced to spend thousands of dollars out of pocket to become pregnant.
`
`96. Ms. Goidel will also endure further financial injury by paying recurrent
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`out-of-pocket costs to store embryo and sperm that she intends to use at a later date.
`
`V.
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`Class Allegations
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`97.
`
`Plaintiff seeks prospective injunctive relief and damages on behalf of two
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`classes of similarly situated individuals under Rule 23(b)(2) and (b)(3), respectively, of the
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`Federal Rules of Civil Procedure (“Plaintiff Classes”).
`
`98.
`
`The Plaintiff Class under Rule 23(b)(3) comprises all individuals who,
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`while covered by an Aetna student health plan in New York, have been denied coverage for
`
`fertility treatment by Aetna because the individual, due to their sexual orientation or gender
`
`identity, cannot meet Aetna’s prerequisite of showing a “failure to establish a clinical pregnancy
`
`after 12 months of regular, unprotected sexual intercourse,” or 6 months for those over 35 years
`
`old.
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 15 of 23
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`99.
`
`The Plaintiff Class under Rule 23(b)(2) comprises all individuals who are
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`or will be covered by an Aetna student health plan in New York and who will be denied
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`coverage for infertility treatment in the future because the individual, due to their sexual
`
`orientation or gender identity, will not be able meet Aetna’s prerequisite of showing a “failure to
`
`establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse,” or 6
`
`months for those over 35 years old.
`
`100. Aetna’s policy language requiring members who, because of their sexual
`
`orientation or gender identity, cannot meet Aetna’s prerequisite and therefore must pay out of
`
`pocket for infertility treatments before Aetna covers such treatments, poses an immediate threat
`
`to the Plaintiff Classes’ rights under Section 1557 of the ACA, the NYSHRL, and the NYCHRL,
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`to be free from discrimination on the basis of sex.
`
`101. The Plaintiff Classes are so numerous that joinder of all individual
`
`members would be impracticable. Plaintiff has identified numerous Aetna student health plans in
`
`New York that contain identical language to Plaintiff’s Policy regarding infertility treatment. In
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`addition to Columbia University, these include Aetna student health plans for Barnard College,9
`
`Brooklyn Law School,10 Cornell University,11 the Fashion Institute of Technology,12 Hofstra
`
`
`9 Student Health Insurance Policy, Aetna Life Ins. Co. at 44 (eff. Aug. 22, 2020),
`https://www.aetnastudenthealth.com/schools/barnardcollege/masterpolicy2021.pdf.
`10 Student Health Insurance Policy, Aetna Life Ins. Co. at 37 (eff. Aug. 10, 2020),
`https://www.aetnastudenthealth.com/schools/bls/masterpolicy2021.pdf.
`11 Certificate of Coverage 2021–2022, Cornell University Student Health Plan at 40 (approved by N.Y. Dep’t of Fin.
`Servs. June 1, 2021), https://www.aetnastudenthealth.com/schools/cornell2/coc2122.pdf; Certificate of Coverage
`2021–2022, Cornell University Student Health Plan Plus at 36 (approved by N.Y. Dep’t of Fin. Servs. June 1, 2021),
`https://www.aetnastudenthealth.com/schools/cornell2/cocPLUS2122.pdf (both have identical infertility language
`and together serve Cornell University, Cornell Tech, and Weill Cornell Medicine students).
`12 Student Health Insurance Policy, Aetna Life Ins. Co. at 39 (eff. Aug. 15, 2020),
`https://www.aetnastudenthealth.com/schools/fitnyc/masterpolicy2021.pdf.
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`Case 1:21-cv-07619 Document 1 Filed 09/13/21 Page 16 of 23
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`University,13 the Icahn School of Medicine,14 Manhattanville College,15 New York Film
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`Academy,16 New York Institute of Technology,17 New York Medical College,18 Pratt Institute,19
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`Rochester Institute of Technology,20 Syracuse University,21 SUNY Maritime,22 SUNY
`
`Purchase,23 Touro Colleges of Dentistry, Osteopathic Medicine, and Pharmacy,24 and the
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`University of Rochester.25
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`102. These schools together enroll over 150,000 students in New York,
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`including over 60,000 professional and graduate school students. Upon information and belief,
`
`many of these students are likely to be forced to pay out of pocket for fertility treatments based
`
`on their sexual orientation or gender identity, because of Aetna’s discriminatory policy.
`
`
`13 Student Health Insurance Policy, Aetna Life Ins. Co. at 45 (eff. Aug. 1, 2020),
`https://www.aetnastudenthealth.com/schools/hofstrauniversity/masterpolicy2021.pdf.
`14 Student Health Insurance Policy, Aetna Life Ins. Co. at 47 (eff. Aug. 1, 2020),
`https://www.aetnastudenthealth.com/schools/Icahn/masterpolicy2021-0801.pdf.
`15 Student Health Insurance Policy, Aetna Life Ins. Co. at 41 (eff. Aug. 1, 2020),
`https://www.aetnastudenthealth.com/schools/manhattanville/masterpolicy2021.pdf.
`16 Student Health Insurance Policy, Aetna Life Ins. Co. at 45 (eff. Sept. 15, 2020),
`https://www.aetnastudenthealth.com/schools/newyorkfilmny/masterpolicy2021.pdf.
`17 Student Health Insurance Policy, Aetna Life Ins. Co. at 42 (eff. Aug. 1, 2020),
`https://www.aetnastudenthealth.com/schools/nyitdom/masterpolicy2021.pdf.
`18 Student Health Insurance Policy, Aetna Life Ins. Co. at 41 (eff. July 1, 2020),
`https://www.aetnastudenthealth.com/schools/nymedical/masterpolicy2021.pdf.
`19 Student Health Insurance Policy, Aetna Life Ins. Co. at 44 (eff. Aug. 18, 2020),
`https://www.aetnastudenthealth.com/schools/pratt/masterpolicy2021.pdf.
`20 Student Health Insurance Policy, Aetna Life Ins. Co. at 39 (eff. Aug. 15, 2020),
`https://www.aetnastudenthealth.com/schools/rit/masterpolicy2021.pdf.
`21 Student Health Insurance Policy, Aetna Life Ins. Co. at 39 (eff. Aug. 1, 2020),
`https://www.aetnastudenthealth.com/schools/syracuse/masterpolicy2021.pdf.
`22 Student Health Insurance Policy, Aetna Life Ins. Co. at 42 (eff. Aug. 10, 2020),
`https://www.aetnastudenthealth.com/schools/sunymaritime/masterpolicy2021.pdf.
`23 Student Health Insurance Policy, Aetna Life Ins. Co. at 46 (eff. Aug. 14, 2020),
`https://www.aetnastudenthealth.com/schools/purchase/masterpolicy2021.pdf.
`24 Student Health Insurance Policy, Aetna Life Ins. Co. at 40 (eff. July 1, 2020),
`https://www.aetnastudenthealth.com/schools/dentaltouro/masterpolicy2021.pdf; Student Health Insurance Policy,
`Aetna Life Ins. Co. at 40 (eff. July 1, 2020),
`https://www.aetnastudenthealth.com/schools/tourocom/masterpolicy2021.pdf; Student Health Insurance Policy,
`Aetna Life Ins. Co. at 40 (eff. July 1, 2020),
`https://www.aetnastudenthealth.com/schools/tcop/masterpolicy2021.pdf.
`25 Certificate of Coverage 2021–2022, University of Rochester Student Health Insurance Plan at 41–42 (approved by
`N.Y. Dep’t of Fin. Servs. May 18, 2021), https://www.aetnastudenthealth.com/schools/rochester/coc2122.pdf.
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`103. The questions of law and fact presented by Plaintiffs are common to all
`
`members of the Plaintiff Classes. Among others, questions common to the Plaintiff Classes
`
`include:
`
`a. Whether Aetna’s policy language regarding infertility treatment
`
`results in members who, due to their sexual orientation or gender
`
`identity, cannot meet Aetna’s prerequisite of showing a “failure to
`
`establish a clinical pregnancy after 12 months of regular, unprotected
`
`sexual intercourse,” or 6 months for those over 35,” and therefore
`
`have to pay out of pocket for fertility treatments; and
`
`b. Whether this policy