State Treasurer Dale Folwell prohibited the State Health Plan from covering gender-affirming care. Photo by Jade Wilson.

On Thursday, John Knepper, an attorney for North Carolina’s State Health Plan, told the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, that excluding gender-affirming care did not amount to discrimination against transgender people, but rather was a tradeoff born of limited resources.  

The plan, he said, makes tough choices on what procedures it covers for its 700,000-plus members. It doesn’t cover IVF treatments, certain infant formulas, proton-beam therapy for cancer, or breast augmentation to treat gender dysphoria. 

“The exclusion applies to every plan member,” Knepper told the court. “It applies both to transgender transitioners and cisgender detransitioners.” 

The exclusion has left state employees seeking gender-affirming care in limbo since 2018. While the plan provided a one-year window for employees to get such treatment in 2017 in order to comply with new federal regulations, State Treasurer Dale Folwell ended that coverage when he took office. 

A group of state employees filed a federal lawsuit, and U.S. District Court Judge Loretta Biggs ruled on June 10, 2022, that the coverage ban was discriminatory. Folwell, who is running for governor, appealed. A three-judge panel for the Fourth Circuit heard oral arguments in January but decided all 15 of the appeals court’s judges should hear the case alongside a similar one out of West Virginia.

More than 20 conservative states filed briefs supporting North Carolina’s ban, while 15 liberal states weighed in to support the plaintiffs. 

Chief Judge Albert Diaz asked Knepper to justify why the health plan covers a mastectomy for a cancer patient but not for a transgender man. 

Judge Pamela Harris was more direct: “The person who is excluded is a person who wants treatment in connection with a sex change or modification, and I am just hung up on how that is not based on someone’s … transgender status.”

Knepper said the difference is the diagnosis, not the member. 

Judge J. Harvie Wilkinson, a Reagan appointee, was concerned about states’ rights: “We’re going to tell every state in the country how to run their insurance policies, how to treat their employees, and not even the national legislature or the people of any state or the federal agencies that administer the funding? … Doesn’t that give you a real hesitation?” 

Diaz pointed out that if there is an equal protection violation, “then the courts should step in if there’s been discriminatory action against a particular suspect group.”

It’ll be months before the court rules. And whatever it decides, the case is almost certain to end up before the U.S. Supreme Court. 

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Doe, Oh Dear

Last week, an attorney for a former Tulane University student—identified in court documents as “John Doe”—argued to a Fourth Circuit Court of Appeals panel in Richmond that he should be able to anonymously sue a North Carolina woman who accused him of sexual assault. 

Tulane expelled the plaintiff a month before his scheduled graduation in 2022, but he does not appear to have faced criminal charges, according to court records. 

The case raises an interesting question in the #metoo era: Should an accused sexual predator be able to sue “to have his good name restored” while keeping his name secret? 

What’s in a Pseudonym?
After two women accused a college student of sexual assault, he sued to clear his name—but also to ensure his name never gets out in the first place.

On Our Radar

>> Antoine v. Johnston County Board of Education, Part 2

Speaking of secrecy, last week we told you about Michelle Antoine’s attempt to sue her colleagues on the Johnston County Board of Education while keeping her complaint under seal. The school board had removed Antoine’s lawsuit, filed in Johnston County Superior Court, to federal court.  

On Friday, however, Antoine filed a motion to send the case back to Johnston County and asked the federal judge to keep a temporary restraining order that was due to expire that day in place. Antoine withdrew her lawsuit on Sunday after Judge James C. Dever III didn’t respond. 

On Monday, her fellow school board members held an emergency meeting to receive a report on a grievance a school district employee had filed against Antoine. The report, which the restraining order had blocked, says that Antoine “was not completely honest” with investigators about whether she accessed or viewed an employee’s grievance. It also says that she retaliated against the employee with “unsupported and disparaging comments” and “failed to uphold the integrity and the independence of her office.”

In what seems to be the norm for the Johnston County school board, the Monday meeting became a hot mess. The board chair turned off Antoine’s microphone after she accused her colleagues of holding a “kangaroo court.” And her main ally, Ronald Johnson—who is currently under indictment for alleged extortion—nearly got into a fistfight with a member who called Antoine “the most uninformed person, the most disrespected person, the most unprofessional person I’ve ever seen sit on the board of education or any board,” The News & Observer reported

The complaint Antoine filed in Johnston County still appears to be sealed

>> McKinney v. Goins

In 2019, state legislators passed the SAFE Child Act, which provided a two-year window for child sexual abuse victims to file lawsuits that the statute of limitations would have foreclosed. The law came amid growing research that, on average, those who are abused as children at places like schools and churches don’t disclose the abuse until they’re 52

The Gaston County Board of Education—which allegedly failed to protect students from a predatory wrestling coach—challenged that part of the law, and in 2021, a divided panel of superior court judges ruled that it was unconstitutional. But on September 12, a split N.C. Court of Appeals panel upheld the law, saying that defendants do not have a “vested right” in statutes of limitations. 

North Carolina does not track how many lawsuits have been filed under the SAFE Child Act, but Lanier Law Group founder Lisa Lanier said her firm has represented 273 victims who filed cases in 2020 and 2021. Defendants included the UNC School of the Arts, the Roman Catholic Diocese, and the Gaston County school board in McKinney v. Goins

Three former students at East Gaston High School sued Gary Scott Goins and the school board, alleging that Goins assaulted them in the late 1990s and early 2000s and the school board covered up the abuse. Goins was convicted of multiple counts of abuse and is now serving up to 34 years in prison.

The school board argued that the state law denied them due process. (The Piney Grove Volunteer Fire and Rescue Department, which faced a separate lawsuit, made the same argument.) But Judge Allison Riggs, whom Gov. Roy Cooper recently appointed to the N.C. Supreme Court, wrote for the appeals court majority that striking down the law would give “a free pass for those who engaged in and covered up atrocious child sexual abuse.”

Lanier called the ruling a “great day” for victims, but cautioned that the N.C. Supreme Court has yet to weigh in. 

>> Union County v. the First Amendment

Union County officials appear to have broken their own policy against allowing non-governmental groups to use library meeting rooms by permitting the local Moms for Liberty chapter to hold a “Constitution Day Storytime” on September 16. 

They may also have flouted the First Amendment: Union County Pride President Cristal Robinson told WFAE that the group requested permission to hold its own Constitution Day event, but the county manager never responded. A county spokesperson later called Union County Pride’s application “vague and ambiguous.”

“This is a blatant violation of the First and 14th Amendments,” Robinson told WFAE. While Union County Pride celebrates the LGBTQ community, the far-right Moms for Liberty is known for pushing book bans and trying to limit discussions about racial and LGBTQ-related subjects in schools.

County officials say they’re planning to review their library policy.

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