The Danish Institute for Human Rights represented A during the case before the Board of Equal Treatment.

In the case in question, A gave birth to her third child in 2012 by a planned caesarean section. In 2021, A underwent surgery for prolapse, but at the end of 2023 it was found that she was still suffering from prolapse. She then reported to insurance company F, where she had accident insurance, that after giving birth in 2012 she had had problems passing stools. She had undergone rectocele surgery, but this had not solved the problem. She therefore wanted the injury covered by the accident insurance.

F refused to provide insurance coverage, claiming that A had not met the burden of proof that A had suffered a coverable accident.

In the insurance terms and conditions, an accident was defined as"a sudden event that causes personal injury".

The case was brought before both the Board of Equal Treatment and the Insurance Appeals Board.

The Appeals Board found no grounds to criticize F for rejecting the reported injury. In its decision of 12 June 2024, the Appeals Board emphasized that it appeared from the birth record that the insured went into labor at 13:55 and that the child was delivered by caesarean section at 22:40. The contractions could not be considered an event/initial impact that met the requirement of having occurred suddenly.

During the case before the Board of Equal Treatment, the Institute referred to the Board's decision in case no. 9239 of March 2024, where it was emphasized that the insurance company's reference to the fact that the injury occurred after a prolonged strain had to be considered as a reference to the insured's pregnancy and birth. Against this background, the Board of Equal Treatment found that the insured had demonstrated factual circumstances that gave reason to assume that she had been subjected to discrimination on the basis of gender.

In A's case, the Department found that F's reference to the medical case files had to be regarded as a reference to the fact that the insured's long labor phases did not constitute a sudden event. With reference to the Board of Equal Treatment's decision no. 9239, the Institute found that F's reasoning had to be considered a reference to the insured's pregnancy and birth. Therefore, there were factual circumstances that gave reason to assume that the insured had been subjected to discrimination based on gender. And thus, F had the burden of proof that there was no discrimination in violation of the Equality Act.

The institute noted in conclusion.

"The complainant generally notes that it cannot be ruled out that a case that is assessed to be in accordance with the insurance agreement in the Insurance Complaints Board could also be assessed to be in violation of the Equality Act in the Board of Equal Treatment.

This should be seen as a "request" that the Board of Equal Treatment should not be influenced by whether the insurance company's case processing had been correct from an insurance law perspective.

F explained that it was an expression of a completely correct and customary insurance law treatment of the case when F had assessed that the insured had not lifted the burden of proof that the damage was caused by a sudden event.

F argued against the Institute's claim that there were such factual circumstances that there was reason to presume that the insured had been subjected to discrimination based on gender. In this connection, F stated, among other things:

"It follows from the equality rules that the respondent is obliged not to treat women less favorably when assessing injuries caused by pregnancy and childbirth in comparison with a person of the opposite sex in a similar situation. A similar situation in a case such as the present one must be compared with similar physical injuries not related to childbirth in order to ensure that injuries are treated equally.

The equality rules thus do not mean that the respondent must deviate from its insurance conditions solely because the injury occurred in connection with pregnancy and childbirth.

The defendant is therefore entitled to apply the insurance contract's coverage conditions and exclusions, regardless of whether the specific injury occurred in connection with childbirth or otherwise. This also applies to the application of the definition of the concept of accident.

The gender equality rules thus do not prevent an insurance company from setting general terms and conditions for accident insurance that limit the insurance coverage in specific situations, provided that the limitation does not entail different coverage for men and women.

Therefore, if an accident insurance policy contains terms that define in more detail when coverage is obtained, such general terms cannot be overridden, regardless of whether this means that a woman cannot obtain coverage for childbirth in certain specific situations - or a man cannot obtain coverage in certain situations.

It is therefore irrelevant for coverage whether the incident in question occurred during pregnancy, childbirth, sports or gardening. A woman is covered by accident insurance both during pregnancy and childbirth on exactly the same terms as any other insured person would be."

F further stated that it is generally recognized and accepted in insurance law that insurance companies have a legitimate interest in - and are entitled to - limit the scope of coverage. This is done partly through the definition of what is considered a covered loss and partly through coverage limitations and exclusions in the insurance contract.

It is of course a prerequisite that the limitation does not result in different coverage for men and women.

The insurance law assessment of A's case was based on an individual and concrete assessment, just like the assessment of any other claim reported under the accident insurance.

In this case, the insurance law requirement that the injury was caused by a sudden event was not met. Regardless of whether the insured is male or female, a claim reported to the accident insurance will be rejected when the insured cannot prove which specific sudden event caused the injury.

Finally, F referred to the fact that the Insurance Appeals Board has established that the assessment of whether there is a "sudden event" in the sense of insurance law is a gender-neutral assessment - and that the assessment must therefore be made regardless of the injured party's gender.

The case has now been decided by the Board of Equal Treatment by decision of August 11, 2025.

The Board of Equal Treatment initially noted that the Board was competent to hear the case in relation to the Equality Act, regardless of the fact that the case was also heard by the Appeals Board. This was also undisputed between the parties.

In the premises, the Board provides a definition of the terms "direct discrimination" and "indirect discrimination" within the meaning of the Equality Act. The Board of Equal Treatment then states:

"On February 28, 2023, the respondent refused to acknowledge the injury. The respondent justified the refusal by stating that the respondent did not find documentation in the medical files that an accident had occurred that caused the complainant's discomfort.

The defendant maintained its refusal on March 31, 2023. The defendant justified the refusal on the grounds that the medical files did not contain information about an accident in the form of a sudden event and that the complainant's description also did not describe what could be considered an accident.

The Board assesses that the complainant has not, with the information provided, demonstrated factual circumstances that give reason to assume that she has been subjected to discrimination on the grounds of gender.

The Board has emphasized that the respondent justified the rejection by stating that there was no information in the complainant's description or in the complainant's medical information that the complainant's injury had occurred as a result of an accident covered by the accident insurance.

The complaint is therefore not upheld."

Of course, this is a specific case, and F had also explained thoroughly why there was no information about a sudden event as the cause of the injury. However, it must be assumed that the decision is also of more general interest in these birth injury cases.

The Board of Equal Treatment emphasizes that F justified the rejection by stating that there was no documentation in the medical files that an accident had occurred which caused the complainant's complaints. The insured had thus not met the burden of proof that the injury was caused by a sudden event within the meaning of insurance law.

Firstly, the Board of Equal Treatment's reasoning in the premises quoted above shows that it is important that the company in the refusal gives a factual reason why the insured has not proven that the injury was caused by circumstances that can be considered a sudden event.

The decision thus also shows that the insured has the burden of proof that an accident has occurred within the meaning of the insurance contract (in accordance with established practice from the Insurance Complaints Board).

But it is particularly interesting that the Board of Equal Treatment apparently does not accept the Institute's argument that the company's reference to the medical case files, which among other things mention a long labor phase, can in itself be considered a "reference to the complainant's pregnancy and birth", and that there should therefore be factual circumstances that gave reason to assume that the insured had been discriminated against on the basis of gender.

As the Board of Equal Treatment did not share this assumption, it was not a situation where the burden of proof was reversed, so that it was F who had to prove that gender discrimination had not occurred.

At present, there is no information as to whether the Institute accepts the decision of the Board of Equal Treatment or whether the case will be brought before the courts.

During the case before the Board of Equal Treatment, F was represented by lawyer Michael S. Wiisbye.

I am, of course, at your disposal if you have any questions about the decision.