Attorney defends North Carolina’s same-sex foster care exclusion

RALEIGH, N.C. (AP) – A lawyer representing the leaders of North Carolina’s employee health plan defended its exclusion of sex-affirmed treatment Wednesday in court. federal appeals, and faced a lot of criticism from its chief judge.

State Treasurer Dale Folwell and the CEO of the State Health Plan are trying to overturn a court order requiring the plan to pay for “necessary medical services,” including treatment hormones and some surgeries, for transgender workers and their children. The judge ruled in favor of the employees and their dependents, who said in a 2019 lawsuit that they were not eligible for spousal support under the plan.

Attorney John Knepper told a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, that the plan typically excludes certain medical treatments based on cost, but does not make one of those expectations based on sex or gender.

“The plan is broken,” Knepper said. “In this case, again, the State Health Plan provides complete information for all health risks.

Overseen by Folwell’s office, the plan provides health care for more than 750,000 teachers, state employees, retirees, lawmakers and their families. While counseling is provided for gender dysphoria and other mental health issues, it does not include treatment “related to sexual transitions or transitions and special care.”

Chief Justice Roger Gregory said the exemptions should not exclude a protected class, despite Knepper’s repeated assertion that gender identity is not a category.

“Why choose transgender dysphoria” to balance the books, asked Gregory, a retired President Bill Clinton who was later re-elected to the court by President George W. Bush in 2001.

“The plan is buying everyone,” Knepper replied, noting that his third-party authorities are not informed about a person’s gender or transgender status.

Also on the panel were Circuit Judge Albert Diaz, President Barack Obama’s pick, and Circuit Judge G. Steven Agee, who was nominated to the court by President George W. Bush. There is no indication when they will take over.

Following a federal court ruling in June that declared the denial of coverage unconstitutional, Folwell and the State Health Plan Board of Trustees were required to Last July to return the use of health procedures, which was prepared by the plan for one year in 2017.

U.S. District Judge Loretta Biggs ruled that the plan unlawfully discriminates against transgender people, violating both the equal protection clause of the Constitution and Title VII of the the Civil Rights Act on the basis of sex. Folwell called the decision “legally incorrect” and appealed in August.

Asking the court to uphold the lower court’s decision, Lambda Legal Senior Counsel Tara Borelli argued on behalf of state employees on Wednesday that these exemptions are discriminatory. Lambda Legal and the Transgender Legal Defense & Education Fund filed the first lawsuit on behalf of the workers in March 2019.

Seventeen other states and Washington, DC, which all include gender-affirmed treatment under their state employee health plans, issued a special statement in support of North Carolina workers.

“What they are asking this court to do is to pick up his judicial pen and save this sentence by rewriting it because what they accepted, and what they should protect, is very defenseless,” Borelli said. “It is very clear and obvious discrimination based on sexuality and transgender status.”


Hannah Schoenbaum is a staff member for the Associated Press/Report for America Statehouse News Initiative. Reporting for America is a national service program that places reporters in local newsrooms to report on secret issues.

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