I respectfully dissent.
I would reverse the judgment because there is a reasonable possibility the complaint can be amended to allege that the Blue Shield contract violated the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.)1
Section 1365.5 prohibits a health care service plan contract from altering the contract or limiting benefits or coverage because of a contracting party’s “sex,” among other categories. California law recognizes that “pregnancy discrimination is a form of sex discrimination under article I, section 8 of the California Constitution” (Badih v. Myers (1995) 36 Cal.App.4th 1289, 1296 [43 Cal.Rptr.2d 229]), first adopted in 1879. (Cal. Const., former art. XX, § 18; Matter of Maguire (1881) 57 Cal. 604, 605; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 8 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351].) The fact that Badih is an employment case in no way detracts from its conclusion that pregnancy discrimination amounts to sex discrimination within the meaning of the California Constitution. It therefore follows that differential treatment on the basis of pregnancy likewise amounts to discrimination on the basis of sex within the meaning of section 1365.5.
Further, Bankers Life & Cas. Co. v. Peterson (1993) 263 Mont. 156 [866 P.2d 241], which the majority opinion attempts to distinguish, is highly pertinent and persuasive. The statute in issue, Montana Code Annotated section 49-2-309, “prohibits discrimination based solely on sex in the issuance, operation, coverage, rates or premiums of any type of insurance policy.” (866 P.2d at p. 241, italics added.) That statute, like section 1365.5, does not use the term pregnancy. The issue presented was whether an individual major-medical-expense insurance policy that excluded coverage for normal pregnancy and childbirth violated Montana Code Annotated section 49-2-309. (866 P.2d at p. 241.) The Montana Supreme Court concluded that “discrimination on the basis of pregnancy is discrimination on the basis of sex and is, therefore, prohibited by the Montana unisex insurance statute.” (Id., at p. 245.)
The court reasoned “[p]regnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus, any classification which relies on pregnancy as the determinative criterion is a distinction based on sex ... By definition, [placing pregnancy in a class by itself] discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male. [Citation.]” (Bankers Life & Cas. Co. v. Peterson, supra, 866 P.2d at p. 243.)
*55Thus, it is hardly a novel proposition that “differential treatment of pregnancy is gender-based discrimination because only women can become pregnant.” (Bankers Life & Cas. Co. v. Peterson, supra, 866 P.2d at p. 243.)
The majority opinion emphasizes the statute construed in Bankers Life “has no federal or sister-state counterpart.” (Bankers Life & Cas. Co. v. Peterson, supra, 866 P.2d at p. 243.) The fact that Montana Code Annotated section 49-2-309 applies only to Montana is a distinction without a difference. Both Montana section 49-2-309 and section 1365.5 of the Knox-Keene Act prohibit discrimination on the basis of sex, and both cases raise the issue whether differential treatment of pregnancy constitutes discrimination on the basis of sex within the meaning of the statute. Thus, Bankers Life is directly on point, is sound in its rationale, and should help guide a proper interpretation of Knox-Keene’s prohibition on sex discrimination.
Although section 1365.5 bars gender-based differentials, the prohibition is not absolute. Under the statute, “premium, price, or charge differentials . . . because of the sex or age of any individual when based on objective, valid, and up-to-date statistical and actuarial data are not prohibited.” (§ 1365.5, subd. (b), italics added.) Therefore, the question whether a $1,000 copayment for maternity care violates the statute is ultimately one of fact which cannot be resolved at the pleading stage.
A petition for a rehearing was denied June 27, 2000, and appellants’ petition for review by the Supreme Court was denied August 16, 2000. Mosk, J., was of the opinion that the petition should be granted.
All further statutory references are to the Health and Safety Code, unless otherwise indicated.