Lawyer defends North Carolina’s transgender care exclusions

Jan 24, 2023, 11:23 PM | Updated: Jan 25, 2023, 1:28 pm
FILE - Connor Thonen-Fleck addresses reporters while his parents stand by his side on March 11, 201...

FILE - Connor Thonen-Fleck addresses reporters while his parents stand by his side on March 11, 2019, in Durham, N.C., at the announcement of a lawsuit against North Carolina officials over how the state health plan is run. State Treasurer Dale Folwell and the plan's executive administrator appealed a federal court ruling last summer that declared the plan's refusal of coverage for “medically necessary services," including hormone replacement therapy and surgeries, unconstitutional. The 4th U.S. Circuit Court of Appeals heard oral arguments Wednesday, Jan. 25, 2023. (AP Photo/ Jonathan Drew, File)

(AP Photo/ Jonathan Drew, File)

RALEIGH, N.C. (AP) — A lawyer representing the leaders of North Carolina’s state employee health plan defended its exclusion of gender-affirming treatments on Wednesday before a federal appeals court, facing a barrage of criticisms from its chief judge.

State Treasurer Dale Folwell and the State Health Plan’s executive administrator are seeking to overturn a trial court order demanding that the plan pay for “medically necessary services,” including hormone therapy and some surgeries, for transgender employees and their children. The judge had ruled in favor of the employees and their dependents, who said in a 2019 lawsuit that they were denied coverage for gender-affirming care 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 routinely excludes some medically necessary procedures based on cost, but does not make any of those determinations based on sex or gender.

“The plan is broke,” Knepper said. “In this case, again, the State Health Plan provides full coverage for all health risks. There are just some health risks it doesn’t cover.”

Overseen by Folwell’s office, the plan provides medical coverage for more than 750,000 teachers, state employees, retirees, lawmakers and their dependents. While it provides counseling for gender dysphoria and other diagnosed mental health conditions, it does not cover treatment “in connection with sex changes or modifications and related care.”

Chief Circuit Judge Roger Gregory said the exclusions unnecessarily single out a protected class, despite Knepper’s repeated assertions that gender identity is not a factor.

“Why pick on transgender dysphoria” to balance the books, asked Gregory, a recess appointment of President Bill Clinton who was later renominated to the court by President George W. Bush in 2001.

“The plan is picking on everybody,” Knepper responded, noting that its third-party administrators are not informed of a person’s gender identity or transgender status.

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

Complying with a June federal court ruling that declared the refusal of coverage unconstitutional, Folwell and the State Health Plan Board of Trustees were required last July to reinstate coverage of trans health procedures, which the plan once provided for a single year in 2017.

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

Asking the court to affirm the lower court ruling, Lambda Legal Senior Counsel Tara Borelli argued on behalf of state employees Wednesday that these exclusions are targeted discrimination. Lambda Legal and the Transgender Legal Defense & Education Fund had filed the original lawsuit on behalf of trans employees in March 2019.

Seventeen other states and Washington, D.C., all of which cover gender-affirming treatments under their state employee health plans, filed an amicus brief in support of North Carolina employees.

“What they’re asking this court to do is to pick up its judicial pen and rescue this exclusion by rewriting it because the one they’ve adopted, and the one that they actually have to defend, is so indefensible,” Borelli said. “It so plainly and clearly discriminates based on sex and transgender status.”

___

Hannah Schoenbaum is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

AP

FILE - A sign is shown on a Google building at their campus in Mountain View, Calif., Sept. 24, 201...
Associated Press

Google hopes ‘Bard’ will outsmart ChatGPT, Microsoft in AI

Google is girding for a battle of wits in the field of artificial intelligence with “Bard," a conversational service apparently aimed at countering the popularity of the ChatGPT tool backed by Microsoft.
1 day ago
Lee Sang-min, Minister of the Interior and Safety, center, speaks at the government complex in Seou...
Associated Press

South Korean lawmakers impeach minister over crowd crush

SEOUL, South Korea (AP) — South Korea’s opposition-controlled parliament on Wednesday voted to impeach the country’s interior and safety minister, Lee Sang-min, holding him responsible for government failures in disaster planning and the response that likely contributed to the high death toll in a crowd crush that killed nearly 160 people in October. The impeachment […]
1 day ago
A sign stands on a quiet day in what used to be AmericaÅfs largest overseas naval base at the Subi...
Associated Press

US forces returning to Philippines to counter China threats

SUBIC BAY, Philippines (AP) — Once-secret ammunition bunkers and barracks lay abandoned, empty and overrun by weeds — vestiges of American firepower in what used to be the United States’ largest overseas naval base at Subic Bay in the northern Philippines. But that may change in the near future. The U.S. has been taking steps […]
1 day ago
Sri Lankan president Ranil Wickremesinghe, left, arrives at the parliament to deliver his policy sp...
Associated Press

Sri Lankan leader appeals for patience amid economic crisis

COLOMBO, Sri Lanka (AP) — Sri Lanka’s president on Wednesday appealed for patience amid the country’s worst economic crisis but promised brighter times ahead. President Ranil Wickremesinghe said in a policy speech after inaugurating a new parliamentary session that he had been forced to make unpopular decisions to salvage the country’s finances, including by implementing […]
1 day ago
Ukrainian President Volodymyr Zelenskyy addresses a media conference after the EU-Ukraine summit in...
Associated Press

Zelenskyy to visit UK for first time since Russia’s invasion

LONDON (AP) — Ukrainian President Volodymyr Zelenskyy will visit Britain on Wednesday, his first trip to the U.K. since Russia’s invasion began nearly a year ago and only his second confirmed journey outside Ukraine during the war. The British government says Zelenskyy will hold talks with Prime Minister Rishi Sunak, address Parliament and meet with […]
1 day ago
Associated Press

Indonesian police in Bali detain Australian wanted by Italy

DENPASAR, Indonesia (AP) — Police on the Indonesian resort island of Bali have detained an Australian who is wanted by Italy since 2016 on drug trafficking charges. Antonio Strangio, who holds dual Italian and Australian citizenship, was detained at Bali International Airport after arriving from Kuala Lumpur, Malaysia, last Thursday, said Antonius Parlindungan, an immigration […]
1 day ago

Sponsored Articles

safety from crime...

As crime increases, our safety measures must too

It's easy to be accused of fearmongering regarding crime, but Seattle residents might have good reason to be concerned for their safety.
Comcast Ready for Business Fund...
Ilona Lohrey | President and CEO, GSBA

GSBA is closing the disparity gap with Ready for Business Fund

GSBA, Comcast, and other partners are working to address disparities in access to financial resources with the Ready for Business fund.
SHIBA WA...

Medicare open enrollment is here and SHIBA can help!

The SHIBA program – part of the Office of the Insurance Commissioner – is ready to help with your Medicare open enrollment decisions.
Lake Washington Windows...

Choosing Best Windows for Your Home

Lake Washington Windows and Doors is a local window dealer offering the exclusive Leak Armor installation.
Anacortes Christmas Tree...

Come one, come all! Food, Drink, and Coastal Christmas – Anacortes has it all!

Come celebrate Anacortes’ 11th annual Bier on the Pier! Bier on the Pier takes place on October 7th and 8th and features local ciders, food trucks and live music - not to mention the beautiful views of the Guemes Channel and backdrop of downtown Anacortes.
Swedish Cyberknife Treatment...

The revolutionary treatment of Swedish CyberKnife provides better quality of life for majority of patients

There are a wide variety of treatments options available for men with prostate cancer. One of the most technologically advanced treatment options in the Pacific Northwest is Stereotactic Body Radiation Therapy using the CyberKnife platform at Swedish Medical Center.
Lawyer defends North Carolina’s transgender care exclusions