# KADEL v. FOLWELL

> District Court, M.D. North Carolina · June 10, 2022

URL: https://www.frixlaw.com/law-library/cases/10653651

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** June 10, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653651

## How later opinions describe it (automated extraction)

- finding that a Ph.D.-holding neuropsychologist and neurotoxicologist was not a medical doctor and therefore was “not qualified to diagnose the cause of [plaintiff’s] alleged symptoms”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MAXWELL KADEL, et al., )
)
Plaintiffs, )
)
v. )
) 1:19CV272
DALE FOLWELL, et al., )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiffs are transgender individuals or the parents of transgender individuals who
receive health insurance through the North Carolina State Health Plan for Teachers and State
Employees (“NCSHP” or the “Plan”). (ECF No. 75 ¶¶ 1, 7–12.) They allege that the Plan’s
categorical exclusion of coverage for treatments “leading to or in connection with sex changes
or modifications” discriminates against them on the basis of sex and transgender status in
violation of the Equal Protection Clause and the Affordable Care Act (“ACA”) and seek
declaratory, injunctive, and monetary relief. (Id. ¶¶ 1, 139–53, 165–74.) Plaintiff Dana
Caraway additionally alleges that NCSHP and her employer, the North Carolina Department
of Public Safety (“DPS”), discriminated against her on the basis of sex by offering and
administering the Plan in violation of Title VII of the Civil Rights Act of 1964. (Id. ¶¶ 175–
188.) Before the Court are cross motions for summary judgment filed by DPS, NCSHP, and
Plaintiffs, (ECF Nos. 132; 136; 178); Plaintiffs’ motions to exclude expert testimony, (ECF
Nos. 202; 204; 206; 208; 212); and Plaintiffs’ motions to seal, (ECF Nos. 182; 210).1
For the reasons stated herein, the Court finds that the Plan’s exclusion discriminates

based on sex and transgender status in violation of the Equal Protection Clause and
discriminates because of sex in violation of Title VII. The Court will reserve a ruling on claims
alleged under the ACA pending further Order from this Court.
I. BACKGROUND
A. Plaintiffs’ experiences with the Plan
Plaintiff Connor Thonen-Fleck is a 19-year-old man. (ECF No. 179-2 ¶ 2.) He is also

transgender. (Id. ¶ 3.) Thonen-Fleck was “designated ‘female’ at birth” but identifies and lives
his life as a man. (Id.) In his words, he “demonstrated stereotypically masculine tendencies
and characteristics from a young age,” and by 15 years old, “had socially transitioned and was
living in [his] authentic male gender identity in all aspects of [his] life.” (Id. ¶¶ 5–6.) His male
identity is now reflected in his legal name, gender marker, birth certificate, and driver’s license.
(Id. ¶ 8.)

Before Connor and his family understood what it meant to be transgender, Connor
“was in serious and increasing distress” and suffered from depression and suicidal ideation.

1 These include: a Motion for Summary Judgment filed by Defendant North Carolina Department of
Public Safety, (ECF No. 132); a Motion for Partial Summary Judgment filed by Defendants Dale
Folwell, Dee Jones, and NCSHP, (ECF No. 136); Plaintiffs’ Motion for Summary Judgment, (ECF
No. 178); Plaintiffs’ Motion to Seal Exhibits to Plaintiffs’ Motion for Summary Judgment, (ECF No.
182); Plaintiffs’ Motion to Exclude Expert Testimony of Dr. Peter Robie, (ECF No. 202); Plaintiffs’
Motion to Exclude Expert Testimony of Dr. Paul W. Hruz, (ECF No. 204); Plaintiffs’ Motion to
Exclude Expert Testimony of Dr. Paul R. McHugh, (ECF No. 206); Plaintiffs’ Motion to Exclude
Expert Testimony of Dr. Patrick W. Lappert, (ECF No. 208); Plaintiff’s Motion to Seal portions of
Dr. Lappert’s report, (ECF No. 210); and Plaintiffs’ Motion to Exclude Expert Testimony of Stephen
B. Levine, M.D., (ECF No. 212).
(Id. ¶ 5; ECF No. 179-3 ¶ 6.) His psychiatrist diagnosed him with gender dysphoria. (ECF
No. 185-1 at 40–41; see ECF No. 179-2 ¶ 7.) Gender dysphoria is “a condition that is
characterized by clinically significant distress and anxiety resulting from the incongruence

between an individual’s gender identity and birth-assigned sex.” (ECF No. 219 at 10; see ECF
No. 197 at 13.) Treatments may include therapy, medications, or surgery to align the patient’s
physiology with their identity and “allow[ ] the individual to transition from his or her birth
assigned sex to the sex associated with his or her gender identity.” (ECF No. 219 at 10.) In
Connor’s case, his physicians recommended counseling, hormone therapy beginning in
January 2018, and ultimately chest reconstruction surgery in May 2019 “to bring [his] body

into better alignment with [his] gender identity and lived experience and further reduce [his]
symptoms of gender dysphoria.” (ECF Nos. 179-2 ¶¶ 7, 9–10; 179-3 ¶ 15.) In his father’s
words, “it was clear that being a teenage boy without a typically male chest was very painful
for [Connor].” (ECF No. 179-3 ¶ 13.)
Connor has health insurance through his father, who is a state employee at the
University of North Carolina, Greensboro and a member of the North Carolina State Health

Plan for Teachers and State Employees (“NCSHP” or the “Plan”). (Id. ¶¶ 2–4.) When Connor
was prescribed testosterone treatments in 2018, NCSHP denied coverage due to a categorical
exception for “[t]reatment or studies to or in connection with sex changes or modifications
and related care.” (Id. at 22.) Connor’s chest surgery also was not covered. (Id. ¶ 14.) As a
consequence, the family had to delay the surgery, and Connor worked after school to help
raise money for his healthcare. (Id. ¶¶ 14–15; ECF No. 179-2 ¶ 14.) Eventually, the family

saved enough to pay out of pocket. (ECF No. 179-3 ¶ 15.) Connor and his father testify that
the treatments were “life-changing” and “critical for [his] ongoing development and
functioning as a young adult.” (Id. ¶ 16; ECF No. 179-2 ¶ 16.) Connor will need ongoing
access to hormone therapy and anticipates requiring additional surgery to continue treatment

of his gender dysphoria. (ECF No. 179-2 ¶ 17.)
Connor’s experience is typical of remaining Plaintiffs. Plaintiffs are all current or
former North Carolina state employees or dependents of state employees who receive health
insurance through NCSHP. (ECF Nos. 179-1 ¶¶ 2, 5; 179-4 ¶¶ 2, 8; 179-5 ¶ 19; 179-6 ¶¶ 2,
5; 179-7 ¶¶ 5–6; 179-9 ¶¶ 2, 16.) Plaintiffs or their dependents identify as transgender. (ECF
Nos. 179-1 ¶ 2; 179-4 ¶ 2; 179-5 ¶ 4; 179-7 ¶ 2; 179-9 ¶ 3.) These Plaintiffs each formed their

gender identities early in childhood, (see, e.g., ECF No. 179-5 ¶ 6 (“Ever since I was a young
child, I have known that I am [a] boy.”)); see generally ECF Nos. 179-1 ¶ 6; 179-4 ¶ 4–5; 179-6
¶¶ 7–8; 179-9 ¶ 9), and have suffered from anxiety and depression caused by suppression of
their gender identities, discrimination and harassment from peers, and living with physical
features not typical of the gender with which they identify, (ECF Nos. 179-1 ¶ 8; 179-4 ¶ 4;
179-5 ¶¶ 13, 24; 179-7 ¶ 7; 179-9 ¶ 11). Each has been diagnosed with gender dysphoria.

(ECF Nos. 179-1 ¶ 6; 179-4 ¶¶ 4, 5, 9; 179-5 ¶ 14; 179-7 ¶ 8; 179-9 ¶ 19; 185-1 at 31, 34, 37,
40–41, 43, 60.) And each has been denied coverage for procedures prescribed to treat gender
dysphoria, to include puberty delaying medication, hormone therapy, mastectomy,
mammaplasty, vaginoplasty, and vocal therapy. (ECF Nos. 179-1 ¶¶ 7, 9–15; 179-4 ¶¶ 9–10;
179-5 ¶¶ 20–22; 179-7 ¶¶ 13–17; 179-9 ¶¶ 20–21, 23–26.)
B. The Exclusion
The basis for NCSHP’s denial of coverage is an exclusion that dates back to the 1990s.
(ECF No. 137-2 at 16:10-13.) The North Carolina General Assembly originally formed

NCSHP to administer “one or more group health plans that are comprehensive in coverage”
and tasked the State Treasurer, NCSHP Executive Administrator, and NCSHP Board of
Trustees with certain “duties and responsibilities as fiduciaries for the Plan.” N.C. Gen. Stat.
§ 135-48.2(a). The Plan is North Carolina’s largest insurer with approximately 740,000
members. (ECF Nos. 137-1 at 35:9-12; 137-2 at 74:1-5.) Individual members pay a monthly
premium with additional funding coming from the state. (ECF Nos. 137-2 at 102:22-24,

105:22-24; 137-3 at 1.) From January to August 2018, NCSHP had collected approximately
$2.4 billion in revenue and had a cash balance of approximately $1.1 billion. (ECF No. 184 at
132, 142.)
The Plan only covers “medically necessary” services but does not cover all medically
necessary services. (ECF No. 137-2 at 58:4-7.) “Medically necessary services or supplies” are
defined by North Carolina statute as those services or supplies that are (1) “[p]rovided for the

diagnosis, treatment, cure, or relief of a health condition, illness, injury, or disease” and “not
for experimental, investigational, or cosmetic purposes,” (2) “[n]ecessary for and appropriate
to the diagnosis, treatment, cure, or relief of a health condition, illness, injury, disease, or its
symptoms,” (3) [w]ithin generally accepted standard of medical care in the community,” and
(4) “[n]ot solely for the convenience of the insured, the insured’s family, or the provider.”
N.C. Gen. Stat. § 58-3-200(b).
Each year, NCSHP adopts and publishes PPO Plan Benefit Booklets that list the
healthcare that is and is not covered by the Plan. (See ECF No. 184 at 56–104.) The Plan’s
third-party administrators, Blue Cross/Blue Shield of North Carolina (“Blue Cross”) and

CVS/Caremark (“CVS”), then implement the booklet using the national billing practices and
medical coding system of the healthcare industry. (ECF Nos. 137-1 at 119:9-10; 197-14 ¶ 11.)
From the 1990s to 2016, the Plan contained two exclusions relevant to Plaintiffs’ causes of
actions. The 2016 Plan did not cover:
 Psychological assessment and psychotherapy treatment in conjunction with
proposed gender transformation.

 Treatment or studies leading to or in connection with sex changes or
modifications and related care.

(ECF No. 184 at 59–60.) According to Defendants, the first exception has never been
implemented and is no longer part of the Plan. (See ECF Nos. 137 at 13 n.2; 137-4 ¶ 27.) Blue
Cross and CVS do give effect to the second exclusion by identifying specific treatments that
are not covered. (ECF No. 137-4 ¶¶ 20–21; see, e.g., ECF No. 179-3 at 12–13.) According to
Blue Cross, four procedures are not covered by the Plan “regardless of the diagnostic code,”
to include “Intersex Surgery, Male to Female,” “Intersex Surgery, Female to Male,”
“Vaginoplasty for Intersex State,” and “Clitoroplasty for Intersex State.” (ECF No. 137-4
¶ 20.) Two dozen other procedures are not covered when the procedural diagnostic code is
for “Transsexualism” or “Personal history of sex reassignment.” (Id. ¶ 21.) CVS likewise may
deny coverage for medication, such as puberty blockers or hormone treatments, due to the
exclusion. (See ECF No. 179-3 at 13 (denying coverage for testosterone where the associated
diagnosis was “Transsexualism”).)
The Plan did briefly cover “Medically necessary services for the treatment of gender
dysphoria” in 2017. (ECF No. 184 at 63.) On May 18, 2016, the U.S. Department of Health
and Human Services (“HHS”) promulgated a final rule prohibiting “categorical coverage

exclusion[s] or limitation[s] for all health services related to gender transition.”
Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, 31471–72 (May 18,
2016). The NCSHP Board of Trustees acted to comply with the regulation and considered
“remov[ing] the blanket exclusions that relate to treatment or studies leading to or in
connection with sex changes or modifications and related care” and instead covering
“medically necessary services for the treatment of gender dysphoria.” (ECF No. 185-2 at 34.)

At that time, the Board estimated that coverage would cost between $344,013 and $862,292
per year. (ECF No. 184 at 36.) Ultimately, the Board elected to remove the exclusion only
for the 2017 year, and it went back into effect in 2018. (ECF No. 185-2 at 35; see ECF No.
184 at 66–67.) The total cost to NCSHP of removing the exclusion in 2017 was $404,609.26.
(ECF No. 184 at 23.)
C. Scientific background

“The health care community’s understanding of what it means to be transgender has
advanced greatly over the past century.” (ECF No. 219 at 2 (Brief of Amici Curiae the
American Medical Association, et al.).) The health care community now understands that
being transgender relates to a person’s “internal sense” of gender and is not a psychiatric
condition. (Id. at 7.) “Every person has a gender identity.” (Id.) A “cisgender” person’s
internal gender aligns with their physiological, chromosomal, and birth-assigned sex. (Id. at

5.) But not all individuals who “depart from stereotypical male and female appearances and
roles” identify as transgender; rather, transgender individuals are those who “consistently,
persistently, and insistently” identify as a gender “different from the sex they were assigned at
birth.” (Id. at 8–9.) Being transgender “implies no impairment in a person’s judgment,

stability, or general social or vocational capabilities.” (Id. at 2.)
While being transgender is not itself a psychiatric condition, many transgender
individuals experience severe anxiety and distress as a result of having physiology or an
assigned sex that does not match their “deeply felt, inherent sense of their gender.” (Id. at 5,
10 (internal quotations omitted).) Like Plaintiffs, many of these transgender individuals have
been diagnosed with gender dysphoria. (Id. at 10.) Gender dysphoria is “characterized by

clinically significant distress and anxiety resulting from the incongruence between an
individual’s gender identity and birth-assigned sex.” (Id.) The Diagnostic and Statistical
Manual of Mental Disorders, volume 5 (“DSM” or “DSM-5”), published by the American
Psychiatric Association, provides diagnostic criteria for gender dysphoria in adults, to include
“[a] marked incongruence between one’s experienced/expressed gender and assigned gender,
of at least 6 months’ duration,” plus “clinically significant distress or impairment in social,

occupational, or other important areas of functioning.” (Id. at 10–11 (quoting DSM-5).)
Gender dysphoria “can cause debilitating distress, depression, impairment of function,
self-mutilation to alter one’s genitals or secondary sex characteristics, other self-injurious
behaviors, and suicide.” (Id. at 11.) It is treated both through counseling and medical and
surgical treatments to bring the patient’s physiology in line with their gender identity. (Id. at
13.) The World Professional Association for Transgender Health (“WPATH”) publishes

Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming
People. (Id. at 12.) The current Standards of Care (“WPATH-7”) recommended treatments
“include[ ] assessment, counseling, and, as appropriate, social transition, hormone therapy, and
surgical interventions.” (Id. at 13.) These treatments are recommended on a case-by-case

basis, and “each patient requires an individualized treatment plan that accounts for the
patient’s specific needs.” (Id. at 14.)
Plaintiffs’ experts testify that such medical and surgical treatment for gender dysphoria
is “medically necessary treatment” for many individuals with gender dysphoria. (ECF No.
185-1 at 23, 238, 331, 333.) They testify that these are “safe and effective treatment[s] for
gender dysphoria” that are governed by “well-established community standards.” (Id. at 23,

192.) They report that such treatments are supported by “[d]ecades of methodologically sound
and rigorous scientific research,” and that “every relevant medical and behavioral health
association agrees that gender-confirming care is a medically necessary treatment for
individuals with gender dysphoria.” (Id. at 238, 333.) Eight professional medical associations
agree in their amicus brief with Plaintiffs’ experts’ assessment. (See generally ECF No. 219.)
Defendants’ experts dispute this testimony. They testify that medical and surgical

treatments have significant medical risks and consequences, and the research supporting such
treatments is of “low quality.” (ECF Nos. 215-1 at 49, 52, 53, 56; 215-2 at 10, 13; 215-3 at 7,
52–54; 215-4 at 17–19, 29–39.) They contest the efficacy of the DSM-5 and WPATH-7 and
challenge the credibility and motivations of what they call the “Transgender Treatment
Industry.” (ECF Nos. 215-1 at 15, 36–40, 47; 215-2 at 6–9, 10–12; 215-3 at 8, 28–31, 36–39;
215-4 at 6–8, 12.) Some of Defendants’ experts testify that gender dysphoria should be treated

by counseling alone and medical or surgical interventions are not medically necessary, (see, e.g.,
ECF No. 215-3 at 16–17, 50–52), while one testifies that physicians should proceed cautiously
in prescribing medication and surgery on a case-by-case basis, (see ECF No. 213-3 at 152:20-
25)

D. Procedural history
Plaintiffs filed their suit on March 11, 2019, against Defendant Dale Folwell, in his
official capacity as State Treasurer of North Carolina, Defendant Dee Jones, in her official
capacity as Executive Administrator of NCSHP, and NCSHP (collectively, “Health Plan
Defendants”), and three public universities: the University of North Carolina at Chapel Hill,
North Carolina State University, and the University of North Carolina, Greensboro

(collectively, “University Defendants”). (ECF No. 1.) Plaintiffs initially alleged violations of
the Equal Protection Clause, Title IX of the Education Amendments of 1972, and the ACA.
(Id. ¶¶ 124–157.)
University Defendants moved to dismiss Plaintiffs’ claims against them on July 8, 2019,
for lack of standing and failure to state a claim under Title IX. (ECF No. 30.) Health Plan
Defendants likewise filed a motion to dismiss on the same day, arguing that Plaintiffs failed to

state claims under the Equal Protection Clause or the ACA. (ECF No. 32.) On March 10,
2020, the Court denied both motions. (ECF No. 45.) Health Plan Defendants filed an
interlocutory appeal of their denial on April 8, 2020. (ECF No. 50.) The Fourth Circuit
affirmed this Court’s Order on September 1, 2021. (ECF Nos. 113; 114.) Health Plan
Defendants filed a petition for certiorari in the U.S. Supreme Court on November 8, 2021,
(ECF No. 127), which was denied on January 18, 2022, (ECF No. 195).
In the interim, Plaintiffs filed a motion to amend their complaint on August 3, 2020.
(ECF No. 62.) Plaintiffs’ motion was granted on March 5, 2021. (ECF No. 74.) Plaintiff’s
First Amended Complaint (the “Complaint”) added Dana Caraway as a Plaintiff, DPS as a

Defendant, and a fourth cause of action arising under Title VII against NCSHP, DPS, and
University Defendants. (ECF No. 75 ¶¶ 12, 18, 130–37.) University Defendants subsequently
settled with Plaintiffs and have been dismissed from this suit. (ECF No. 112.)
DPS and Plan Defendants filed their motions for summary judgment on November
30, 2021. (ECF Nos. 132; 136.) Plaintiffs originally filed two summary judgment motions on
the same day. (ECF Nos. 138; 152.) On December 10, 2021, the Court struck Plaintiffs’

motions and allowed Plaintiffs to file a single dispositive motion with an accompanying
memorandum not to exceed 9,000 words. (ECF No. 176.) Plaintiffs then filed their Motion
for Summary Judgment on December 20, 2021. (ECF No. 178.) Plaintiffs simultaneously
filed a Motion to Seal certain paragraphs of their expert’s testimony that describe in detail
Plaintiffs’ medical history. (ECF No. 182.) Plaintiffs filed their motions to exclude
Defendants’ experts’ testimony on February 2, 2022, along with a motion to seal portions of

one expert’s report which likewise details Plaintiffs’ medical history. (ECF Nos. 202; 204; 206;
208; 210; 212.)
The American Medical Association (“AMA”), American Academy of Pediatrics,
American College of Obstetricians and Gynecologists, American Psychiatric Association
(“APA”), Endocrine Society, North American Society for Pediatric and Adolescent
Gynecology, National Association of Nurse Practitioners in Women’s Health, and Society of
OB/GYN Hospitalists, together filed an amicus brief with leave of the Court on April 11,
2022, in support of Plaintiffs’ summary judgment motion. (ECF No. 219.)
Trial is set in this case for July 5, 2022. (ECF No. 115.) The parties have filed a Joint

Motion to Specially Set Trial and Allow 8-10 Days for Proceedings. (ECF No. 225.)
II. MOTIONS TO EXCLUDE TESTIMONY
The Court will first address Plaintiffs’ motions to exclude expert testimony. The
admissibility of expert opinion is governed by Rule 702 of the Federal Rules of Evidence and
the Supreme Court’s landmark ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Rule 702 provides that a witness “who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise if:”
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.

Fed. R. Evid. 702. Thus, expert testimony is admissible only if: (1) the expert is qualified, (2)
the testimony is relevant, and (3) the testimony is based on reliable scientific methodology.2
See Daubert, 509 U.S. at 594–95. The Court must find these elements “at the outset, . . . by a
preponderance of proof.” Id. at 592; id. n.10.

2 Although Daubert interpreted an earlier version of Rule 702, “the standard of review that was
established for Daubert challenges is still appropriate” to assess the admissibility of expert testimony.
United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005); see In re Viagra (Sildenafil Citrate) & Cialis
(Tadalafil) Prod. Liab. Litig., 424 F. Supp. 3d 781, 789 (N.D. Cal. 2020) (“[N]o obvious conflict arises
between [Rule 702] as amended and Daubert, at least as relevant to the issues in this case.”); see also
Sardis v. Overhead Door Corp., 10 F.4th 268, 282 (4th Cir. 2021) (“Rule 702 was amended specifically to
affirm the trial courts role as gatekeeper.” (internal quotations omitted)).
An expert is qualified if he or she has “specialized knowledge that will assist the trier of
fact in understanding the evidence or determining a fact in issue.” United States v. Young, 916
F.3d 368, 379 (4th Cir. 2019). A witness’ qualifications are “liberally judged by Rule 702,” and

“a person may qualify to render expert testimony in any one of the five ways listed” by the
Rule: “knowledge, skill, experience, training, or education.” Kopf v. Skyrm, 993 F.2d 374, 377
(4th Cir. 1993); see Cooper v. Lab’y Corp. of Am. Holdings, 150 F.3d 376, 380 (4th Cir. 1998).
However, the expert must be qualified to testify “on the issue for which the opinion is
proffered.” Kopf, 993 F.2d at 377. “[G]eneral knowledge,” skill, experience, training, or
education is insufficient to qualify an expert, and an expert qualified in one field may be

unqualified to testify in others. Cooper, 150 F.3d at 380–81 (finding that a witness who had “a
general knowledge of chemistry” and “experience with breath alcohol testing” was not an
expert in “the field of urine alcohol testing”); see Zellers v. NexTech Ne., LLC, 533 F. App’x 192,
199 (4th Cir. 2013) (finding that a Ph.D.-holding neuropsychologist and neurotoxicologist was
not a medical doctor and therefore was “not qualified to diagnose the cause of [plaintiff’s]
alleged symptoms”); see also Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d 378, 391 (D. Md.

2001) (“The fact that a proposed witness is an expert in one area, does not ipso facto qualify
him to testify as an expert in all related areas.”) (collecting cases).
An expert who is qualified must provide testimony that is relevant. An expert’s opinion
is relevant if it “fit[s]” the facts of the case, meaning it has “a valid scientific connection to the
pertinent inquiry.” Daubert, 509 U.S. at 591–92. “This ensures that the expert ‘helps the trier
of fact to understand the evidence or to determine a fact in issue.’” Sardis v. Overhead Door

Corp., 10 F.4th 268, 281 (4th Cir. 2021) (quoting Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th
Cir. 2017)). An outmoded or inapplicable standard that “does not even apply to” the facts at
issue “categorically lacks ‘a valid scientific connection to the pertinent inquiry’” and is “the
touchstone of irrelevancy.” Id. at 289 (quoting Daubert, 509 U.S. at 592). “Simply put, if an

opinion is not relevant to a fact at issue, Daubert requires that it be excluded.” Id. at 281.
Finally, relevant testimony must also by reliable. An expert’s opinion is reliable if it is
“based on scientific, technical, or other specialized knowledge and not on belief or
speculation.” Id. (emphasis omitted) (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250
(4th Cir. 1999)). While the subject of scientific testimony must not “be ‘known’ to a certainty,”
it must be “derived by the scientific method” and “supported by appropriate validation—i.e.,

‘good grounds,’ based on what is known.” Daubert, 509 U.S. at 590. Reliability is a “flexible”
inquiry that must focus “solely on principles and methodology, not on the conclusions that
they generate.” Id. at 594–95. In Daubert, the Court outlined a non-exhaustive list of factors
to guide lower courts in assessing reliability, including: (1) whether the theory can be (and has
been) tested; (2) whether it has been subjected to peer review and publication; (3) its potential
rate of error; (4) whether standards exist to control the technique’s operation; and (5) the

degree of acceptance of the methodology within the relevant scientific community. Id. at 593–
94. These factors “may or may not be pertinent in assessing reliability, depending on the
nature of the issue, the expert’s particular expertise, and the subject of his testimony,” and
courts have “broad latitude” in choosing which factors are “reasonable measures of reliability
in a particular case.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 153 (1999).
“One very significant fact to be considered is whether the experts are proposing to

testify about matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions expressly for
purposes of testifying.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)
(“Daubert II”); Fed. R. Evid. 702, Advisory Comm. Notes (2000 Amendments); Doe v. Ortho-

Clinical Diagnostics, Inc., 440 F. Supp. 2d 465, 470 (M.D.N.C. 2006); see McKiver v. Murphy-Brown,
LLC, 980 F.3d 937, 1008 (4th Cir. 2020) (Agee, J., concurring in part and dissenting in part).
“An ‘expert’ opinion is considered unreliable and inadmissible under Daubert where . . . the
expert has developed the opinions expressly for purposes of testifying in the case . . . .”
Wehling v. Sandoz Pharms. Corp., 162 F.3d 1158, at *5 (4th Cir. 1998) (unpublished); Lebron v.
Sec’y of Fla. Dep’t of Child. & Fams., 772 F.3d 1352, 1369 (11th Cir. 2014).

“Expert evidence can be both powerful and quite misleading because of the difficulty
in evaluating it. Because of this risk, the judge . . . exercises more control over experts than
over lay witnesses.” Daubert, 509 U.S. at 595. Rule 702 “imposes a special gatekeeping
obligation on the trial judge to ensure that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Sardis, 10 F.4th at 281 (internal quotations
omitted). A court cannot “abandon the gatekeeping function” by deferring its responsibility

to the jury. Id. at 282 (quoting Kumho, 526 U.S. at 159 (Scalia, J., concurring)). Ultimately, a
district court’s Rule 702 analysis “necessarily amount[s] to an exercise of broad discretion
guided by the overarching criteria of relevance and reliability.” Belville v. Ford Motor Co., 919
F.3d 224, 233 (4th Cir. 2019).
Although Rule 702 “is not intended to serve as a replacement for the adversary system,”
In re Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. & Prod. Liab. Litig. (No II) MDL 2502, 892

F.3d 624, 631 (4th Cir. 2018), this Court takes seriously its gatekeeping role to protect lay
jurors from “powerful and quite misleading” expert testimony, Daubert, 509 U.S. at 595. The
Court will address each of Plaintiffs’ motions to exclude expert testimony in turn.
A. Dr. Peter Robie (ECF No. 202)

Dr. Peter Robie is a primary care physician and Assistant Professor and Clinical
Associate Professor at the Department of Internal Medicine at Wake Forest School of
Medicine. (ECF No. 215-5.) Robie is also a member of the NCSHP Board of Trustees and
has provided medical knowledge during the Board’s deliberations. (Id.) Defendants plan to
call Robie only to testify (1) “to the medical knowledge he has shared with other Board
members” and (2) that “physicians must know the chromosomal sex of patients” to provide

competent medical care. (Id.) Robie “does not seek to provide testimony on the efficacy of
gender dysphoria treatment or the lack thereof” and has not submitted an expert report. (ECF
No. 215 at 15.)
Regarding the medical knowledge Robie shared with other Boards members,
Defendants do not plan to elicit Robie’s expert opinion; rather, he plans to testify as a fact
witness to information he provided to the Board. Rule 702 is therefore inapplicable. The

Court expresses no opinion on the admissibility or relevance of the proffered testimony.
Regarding Robie’s testimony concerning chromosomal sex, Defendants do not explain
why they seek to introduce this opinion. Elsewhere, Defendants have argued that
“[h]ealthcare providers must know a patient’s sex for every medical diagnosis” to rebut a
hypothetical argument that “any coverage decision is subject to heightened scrutiny if the
healthcare provider considered the patient’s biological sex as part of the diagnostic process.”

(ECF No. 197 at 32.) However, in Section III.A.i., infra, this Court finds that heightened
scrutiny is appropriate in this case because the Plan discriminates based on sex on its face, not
because Plaintiffs’ medical providers considered their sexes. Thus, Robie’s testimony is not
relevant to any fact at issue. Regardless, Robie’s failure to submit an expert report or provide

any basis for his opinion other than a vague reference to his years of practice precludes this
Court from finding that his expert opinion is based on a reliable methodology under Rule 702.
Accordingly, Plaintiffs’ motion to exclude Robie as an expert witness will be granted.
This Court expresses no opinion as to whether he may be called as a fact witness.
B. Dr. Paul Hruz (ECF No. 204)
Dr. Hruz is a board-certified specialist in pediatric endocrinology, Associate Professor

of Pediatrics in the Division of Pediatric Endocrinology and Diabetes and Associate Professor
of Cellular Biology and Physiology in the Division of Biology and Biological Sciences at
Washington University School of Medicine in St. Louis, Missouri. (ECF No. 215-3 ¶¶ 2–3.)
He holds a Ph.D. and M.D. from the Medical College of Wisconsin. (Id. at ¶ 2.) He
additionally served as chief of the Division of Pediatric Endocrinology and Diabetes at
Washington University from 2012–2017 and Director of the Pediatric Endocrinology

Fellowship Program from 2008–2016. (Id.) He has published 60 scholarly articles over two
decades in the fields of metabolism, cardiology, HIV, and ethics. (Id. ¶ 4.) He was a founding
member of Washington University’s multidisciplinary Disorders of Sexual Development
program and has participated in the care of hundreds of infants and children, including
adolescents, with disorders of sexual development during his career. (Id. ¶ 6.)
Hruz offers a wide range of conclusions that fall into five main categories: mental

healthcare, medical and surgical care, informed consent, criticism of medical associations, and
political criticisms. First, he offers several opinions on the mental health treatment of gender
dysphoria, to include that “[m]ental health care professionals are unreliable human ‘lie
detectors’ [whose diagnoses are] ‘often no better than flipping a coin,’” (id. ¶ 28); that the DSM

is scientifically unreliable; (see id. ¶ 13.B); that gender dysphoria is caused by a “social
contagion,” (id. ¶ 41); that “the vast majority of children who report gender dysphoria” will
“desist,” meaning that “if left untreated, [they will] grow out of the problem . . . and willingly
accept their biological sex,” (id. ¶¶ 8, 53); and that a “watchful waiting” approach whereby
mental health providers “neither encourage nor discourage transgender identification” is the
most effective form of treatment, (id. ¶¶ 52–53). Second, he will testify to the risks associated

with hormone treatments and surgery to treat gender dysphoria, particularly in prepubescent
children. (Id. ¶¶ 57, 58, 60.) Third, he will testify that healthcare providers often fail to obtain
informed consent from patients by inaccurately describing the risks associated with hormone
therapy or surgery. (Id. ¶ 36.) Fourth, he will criticize organizations that support gender
affirming care, such as the AMA, WPATH, and the American Psychiatric Association, as
unscientific and politically motivated. (See e.g. id. ¶ 34.A.) Fifth, he will testify that “Cancel

Culture,” “transgender and allied political activists,” and the “Transgender Treatment
Industry” are attempting to “silence open public debate on the risks and benefits of
transgender medical procedures and political ideologies.” (Id. ¶¶ 64–66.)
Plaintiffs have offered evidence that calls Hruz’s motivations—and thereby, his
reliability—into serious question. Hruz admits a connection to the Alliance Defending
Freedom (“ADF”), a political organization with both “moral objections” and scientific

objections to the treatments at issue. (ECF Nos. 205-2 at 241:10–242:15; 209-3 at 81:5-13.)
Early in his research of gender dysphoria, Hruz told a fellow doctor that he had “a significant
problem with the entire issue” and “whole idea of transgender.” (ECF No. 205-10 ¶ 11–13
(testifying that Hruz’s concerns about the relevant treatments were not “based on science”

but rather were “a matter of [his] faith”).) Hruz does not recall making these statements.
(ECF No. 205-2 at 249:19–251:6.) Hruz also met with parents of transgender children early
in his research “to understand the unique difficulties experienced by this patient population.”
(ECF No. 215-3 ¶ 7.) One such parent testifies that the conversation had a “religious tone”
and was not “based on science,” and that Hruz “kept insisting that [her] child was not normal
and would never be normal,” that “the idea of doing surgeries on transgender people is—is

wrong,” and in response to her assertion that transgender children without supportive parents
are at an increased risk of suicide, that “[s]ome children are born in this world to suffer and
die.” (ECF No. 205-11 at 27:17-24, 28:20-23, 29:21–30:1, 37:13-19.) Plaintiffs argue that this
evidence shows Hruz’s “expert” testimony did not grow naturally from his work as an
endocrinologist; rather, he manufactured his opinions expressly for purposes of testifying
against medical care against which he has moral and political objections.

Based on the preponderance of the evidence, this Court finds the following:
First, Hruz is not qualified to offer expert opinions on the diagnosis of gender
dysphoria, the DSM, gender dysphoria’s potential causes, the likelihood that a patient will
“desist,” or the efficacy of mental health treatments. Hruz is not a psychiatrist, psychologist,
or mental healthcare professional. He has never diagnosed a patient with gender dysphoria,
treated gender dysphoria, treated a transgender patient, conducted any original research about

gender dysphoria diagnosis or its causes, or published any scientific, peer-reviewed literature
on gender dysphoria. (ECF Nos. 205-2 at 35:5–36:11, 42:14–49:23, 88:18–90:6; 205-4 at
24:11-14, 25:20-23, 61:17–64:7.) Merely reading literature in a scientific field does not qualify
a witness—even an educated witness—as an expert. See Dura Auto. Sys. of Ind., Inc. v. CTS

Corp., 285 F.3d 609, 614 (7th Cir. 2002) (“A scientist, however well credentialed he may be, is
not permitted to be the mouthpiece of a scientist in a different specialty.”).
Second, Hruz is qualified as an endocrinologist to testify to the risks associated with
puberty blocking medication and hormone therapy. This testimony is broadly relevant to
assessing whether the Plan’s exclusion is substantially related to the state’s interest in
protecting employees and the public from ineffective medical treatments. It also appears

sufficiently reliable, as it is based on Hruz’s long career treating patients and conducting
academic research on the effects of hormone treatments. However, Hruz’s testimony that
focuses on the risks associated with providing hormone therapy to prepubescent children—
children who have not begun puberty—is not relevant. (See, e.g., ECF No. 215-3 ¶ 54.) By his
own admission, “no medical and surgical interventions are initiated until after the onset of
puberty” under any model of treatment, (ECF No. 205-2 at 125:23–126:5), and Plaintiffs

appear to concede that hormone treatment is not medically necessary to treat gender dysphoria
in prepubescent children, (ECF No. 205 at 11–12). In this case, the youngest Plaintiff received
puberty blocking medication when puberty began around age 12. (See ECF No. 179-5 ¶¶ 13–
14.) Thus, a discussion of risks to prepubescent children is irrelevant to this case and would
likely serve only to confuse the jury. Additionally, Hruz is not a surgeon and has no experience
with surgery for gender dysphoria and, therefore, is not qualified to testify to the risks
associated with surgery or the standard of care used by surgeons for obtaining informed
consent for surgery.
Third, Hruz provides no scientific basis to his conclusion that “parents are often

manipulated and coerced by misinformed political activists or providers who threaten them
with dire warnings that the only two options are ‘treatment or suicide’” or that
endocrinologists generally do not obtain informed consent from their gender dysphoric
patients. Hruz is not a statistician and does not discuss in his report how he came to those
conclusions, what data he relied upon, or what methodology he applied to that data. This
testimony will therefore be excluded as unreliable.

Fourth, it does not appear that Hruz has any experience with the AMA, WPATH, or
American Psychological Association upon which to base his criticisms. (See ECF No. 215-3
¶ 34.) He is therefore not qualified to testify about the credibility of those organizations.
Moreover, Hruz’s criticism of the AMA appears largely based on its historical support of
eugenics procedures not at issue in this case, and Hruz has not explained what scientific
methodology if any he used to compare and contrast treatment of gender dysphoria with the

eugenics movement. (See id. ¶ 34.A.) Hruz is not qualified to opine on the deficiencies of the
DSM and the American Psychological because he is not a mental health professional. (See id.
¶ 34.C.) Given that other of Defendants’ experts are intimately familiar with the “consensus
building” method employed by WPATH, the AMA, and similar organizations, the Court finds
that Hruz has not offered any reliable testimony on this subject that will help the trier of fact.
Finally, it does not appear that his repeated references in his report to a “Gender

Transition Industry,” “Cancel Culture,” and political activists working to “silence open public
debate” has any basis, scientific or otherwise. (See id. ¶ 65.) He provides no evidence of such
a conspiracy or any reliable methodology supporting his opinion as required by Rule 702.
Rather, his conspiratorial intimations and outright accusations sound in political hyperbole

and pose a clear risk of inflaming the jury and prejudicing Plaintiffs. It is the Federal Rules of
Evidence, not some “Cancel Culture,” that excludes this portion of Hruz’s testimony. Since
these claims are not based in any methodology and will not assist the trier of fact, this
testimony is inadmissible.
Accordingly, Plaintiffs’ motion will be granted in part and denied in part, and Hruz is
limited in his testimony to a discussion of the risks associated with prescribing hormone

treatments to adolescents and adults.
C. Dr. Paul R. McHugh (ECF No. 206)
Dr. Paul R. McHugh is a licensed psychiatrist and Distinguished Service Professor of
Psychiatry at Johns Hopkins University School of Medicine with more than fifty years of
experience. (ECF No. 215-2 at 1–2.) He holds an M.D. from Harvard Medical School and
was qualified in both Psychiatry and Neurology by the American Board of Psychology and

Neurology. (Id.) He served as director of the Department of Psychiatry and Behavioral
Science at Johns Hopkins Medical School and psychiatrist-in-chief at Johns Hopkins Hospital
for nearly 30 years and served as Chairman of the Medical Board of Johns Hopkins University
Hospital from 1984–1989. (Id. at 2.) He has published several books and numerous peer
reviewed articles in scientific journals. (Id. at 3.) He was elected to the Institute of Medicine
of the National Academies of Science in 1992 and is a Distinguished Life Fellow of the

American Psychiatric Association. (Id. at 4.)
McHugh’s fifteen-page report offers cursory opinions on a wide range of topics.
According to their brief, Defendants primarily seek to elicit from McHugh testimony that the
DSM is unreliable and was not scientifically formed, and that no rigorous scientific research

proves that medical or surgical treatments for gender dysphoria will improve the wellbeing of
patients. (ECF No. 215 at 28–31.) His report also contains several “Summary Opinions” on
the causes of gender dysphoria, rates of desistence, and acceptance of treatments within the
medical community. (ECF No. 215-2 at 12–14.)
Based on the preponderance of the evidence, the Court finds that McHugh is qualified
as an expert in the field of psychiatry by his more than fifty years of experience as a psychiatrist

and academic. Further, his general description of the process by which the current edition of
the DSM was created and opinion about the scientific limitations of such a process are broadly
relevant to rebut Plaintiffs’ expert testimony, as Plaintiffs’ experts use and rely on the DSM’s
definition of gender dysphoria. This testimony is based in McHugh’s personal knowledge and
experience and is sufficiently reliable to be admissible.
However, Defendants have failed to show that McHugh’s more specific criticisms of

the DSM’s approach to gender dysphoria are relevant or based on reliable science. McHugh’s
primary criticisms of the DSM come from his work on various “Psychiatric Misadventures,”
to include “lobotomies,” “repressed memory therapy,” and “multiple personality disorder”—
issues that are not relevant to this case. (See id. at 5–6, 9–10.) To the extent he offers this
testimony to show that treatment for gender dysphoria is “yet another Psychiatric
Misadventure,” (id. at 10–11), his argument-by-analogy does not appear to be based on any
reliable scientific methodology. Instead, he simply suggests that, because the DSM was wrong
before, it might be wrong again. Such speculation is inadmissible under Rule 702.
Next, he testifies that “national research reviews in England, Sweden, and Finland as

well [as] a Chochrane Review and studies by multiple researchers have concluded that the
evidentiary base for these experimental treatments [for gender dysphoria] is weak and
demonstrates few benefits or actually shows this procedures [sic] can cause more harm than
good.” (Id. at 10.) But his report does not cite to any such reviews or studies, (id.), and when
questioned about them at deposition, he could not recall if the “national reviews” in England
or Finland were peer-reviewed or published in scientific journals, and admitted that the

Swedish “national review” was not a national review at all, but rather an academic scientific
study by Swedish researchers, (ECF No. 207-3 at 300:19–301:20, 302:20–303:6). The Court
therefore finds that McHugh’s discussion of such studies is not based on reliable science.
Similarly, he testifies without any definition, explanation, or supportive methodology
that “the exponential growth [of gender dysphoria] in patients was indeed predicted and is
readily explained by a social contagion theory.” (ECF No. 215-2 at 11 (“[S]ocial contagion

seems more likely.” (emphasis added)).) He supports this claim with a citation to his own article
coauthored by Hruz and published in The New Atlantis, (id.), which he admits is neither a peer-
reviewed nor a scientific publication, (ECF No. 207-3 at 264:1-19). He readily concedes that
the number of gender dysphoric patients who have been influenced by a social contagion is
“currently unknown” and that his opinion is “a hypothesis and not a statement of fact”; he
fails to address whether his “social contagion” hypothesis has been tested or peer-reviewed, if

there is a known error rate, or what standards exist to measure its reliability; and it is clear that
his theory has not been accepted by relevant scientific community. (ECF Nos. 207-3 at
299:14–300:5; 215-2 at 13.) Instead, he advocates that research be done on this theory. (See
ECF No. 215-2 at 12 (“The Transgender Treatment Industry has failed to conduct competent

research on the social contagion theory.”), 13 (“Detailed psycho-social investigations of such
patients [who were manipulated by a source of social contagion] may be necessary.”).) Thus,
the Court finds that McHugh’s speculative opinions on “social contagion” hypotheses are
inadmissible.
Finally, he testifies that his views on the DSM “is generally accepted by the relevant
scientific community.” (Id. at 8.) His support for this assertion is based on blog posts and an

inaccurate claim that the National Institute of Mental Health (“NIMH”) withdrew support
from the DSM. (Id. at 7–8.) He acknowledged during deposition, however, that “[t]he
National Institute of Mental Health has not changed its position on DSM-5” and still considers
the DSM to be “the best information currently available for clinical diagnosis of mental
disorders.” (ECF No. 207-2 at 116:10–117:17, 119:3–122:11.) Further, McHugh gives no
explanation or reasoning to support the “summary opinions” tacked on to the end of his

report, giving the Court no meaningful way to assess their reliability. Thus, the Court finds
that these opinions are likewise unreliable and inadmissible.
Accordingly, Plaintiffs’ motion will be granted in part and denied in part, and McHugh
is limited to testifying about the process by which the DSM was formed and his opinion about
the limited scientific reliability of such a process generally.
D. Dr. Patrick W. Lappert (ECF No. 208)
Dr. Patrick W. Lappert is a retired plastic and reconstructive surgeon with experience
in the United States Navy and Marine Corps, university teaching hospitals, and private

practice. (ECF Nos. 215-4 at 1–3; 209-3 at 475:11-19.) During his 24 years of military service,
he served in a number of roles, to include flight surgeon, Chairman of the Department of
Plastic and Reconstructive Surgery at the Naval Hospital in Portsmouth, Virginia, and
Specialty Leader for Plastic Reconstructive Surgery for the Surgeon General of the Navy.
(ECF No. 215-4 at 2–3.) He also served during this period as Teaching Faculty at Eastern
Virginia Medical School, Division of Plastic Surgery. (Id. at 2.) He has several publications in

peer-reviewed medical journals and one medical textbook, the most recent of which was
published in 2000. (Id. at 3.) He retired from the Navy in 2002 and entered private practice
as a solo practitioner. (Id. at 3–4; ECF No. 209-3 at 475:11-19.) He was board certified in
surgery from 1992–2002 and in plastic surgery from 1997–2018. (ECF Nos. 215-4 at 2; 209-
3 at 23:10-18.) He retired from active surgical practice in August 2020. (ECF No. 209-3 at
24:22–25:11.) During his career, he treated thousands of patients, performed many of the

surgeries at issue in this case to treat ailments other than gender dysphoria, and treated
transgender patients during transition and de-transition. (ECF No. 215-4 at 4.)
Lappert primarily seeks to offer opinions that surgical treatments for gender dysphoria
are not supported by rigorous scientific study and pose severe health risks. (See id. at 5–10,
17–20, 29–39.) He additionally offers opinions on the reliability of the DSM, WPATH, and
professional medical organizations; the frequency of desistance or “de-transitioning”;

requirements of informed consent; and acceptance of gender dysphoria treatments by the
relevant scientific community. (Id. at 15–17, 21–25, 40.) Finally, he offers specific opinions
about the medical care received by Plaintiffs based on their medical records. (ECF No. 211-
2 at 49–57.)

As with Hruz, Plaintiffs offer evidence that calls Lappert’s bias and reliability into
serious question. Like Hruz, Lappert has worked closely with ADF. Lappert attended an
ADF-sponsored conference in which a speaker lamented the “poverty of [experts] who are
willing to testify” against the treatments at issue in this case, and where attendees “were asked
whether they would be willing to participate as expert witnesses.” (ECF No. 209-2 at 90:13–
91:13.) Prior to attending this conference, he had not been published on gender dysphoria or

the risks of hormone blockers or served as an expert witness, although he had spoken publicly
about gender dysphoria. (Id. at 84:3–85:4.) Since attending, he has “actively lobbied” for laws
that would prohibit doctors from offering medical or surgical treatments for gender dysphoria
to adolescents in Alabama, Arkansas, Texas, and Utah, and agreed in deposition that doctors
offering these treatments should be “criminally prosecute[d].” (Id. at 52:4-18, 54:7–55:2, 57:8-
15, 61:16–64:20.) And he has stated publicly that parents who “discuss[ ] gender identity issues

with children” are “sexualizing them” and “grooming a generation.” (Id. at 461:1–462:5). As
with Dr. Hruz, Plaintiffs argue that Lappert’s testimony did not grow naturally from his
research, but was instead crafted at ADF’s request for purposes of litigation.
Based on the preponderance of the evidence, the Court finds the following:
i. Qualifications
Lappert is qualified as an expert in plastic surgery. He is thus qualified to opine on the

risks associated with surgery used to treat gender dysphoria, the role surgeons play in treating
gender dysphoria under the WPATH standards, the standard of care of informed consent
among surgeons, the perspective of the relevant plastic surgeon community, and whether the
surgeons obtained informed consent in Plaintiffs’ specific cases. Plaintiffs argue that he is not

qualified because he has not performed any of the procedures at issue in this case within the
last three years as required of experts by the Code of Ethics of the American Society of Plastic
Surgeons (“ASPS”). (ECF Nos. 209 at 8; 209-5 §§ 2.IV1, VII.F.) Although Lappert’s failure
to qualify as an expert under the ASPS requirements weighs against his qualification, the
preponderance of evidence, including his extensive career and relatively recent retirement,
supports that he is qualified to offer expert testimony in the field of plastic surgery.

Lappert is not qualified to render opinions about the diagnosis of gender dysphoria, its
possible causes, the efficacy of the DSM, the efficacy of puberty blocking medication or
hormone treatments, the appropriate standard of informed consent for mental health
professionals or endocrinologists, or any opinion on the non-surgical treatments obtained by
Plaintiffs. Lappert is not a psychiatrist, psychologist, or mental health professional, nor has
he ever diagnosed a patient with gender dysphoria. He is not an endocrinologist, nor has he

ever treated a patient with hormone therapies. By his own admission, he “do[es] not hold
[himself] out as an expert in diagnosing mental health conditions outside, potentially, of body
dysmorphic disorder” and does not have any “expertise in treating mental health conditions.”
(ECF No. 209-3 at 75:7-16.)
Lappert is also not qualified to opine on the efficacy of randomized clinical trials,
cohort studies, or other longitudinal, epidemiological, or statistical studies of gender dysphoria.

He is not a statistician or epidemiologist, and there is no evidence in his report or deposition
that he has any experience, specialized training, or knowledge about crafting a research study,
analyzing data, or conducting a clinical trial. (See generally id. at 129:13–134:19.) His
publications appear to include case reports and opinion essays, and he has not published any

original research in two decades. (Id.) His brief academic career appears limited to teaching
and overseeing clinic practitioners, not conducting research. (ECF No. 215-4 at 2–4.) Just as
an epidemiologist or statistician would not be qualified to perform surgery, a surgeon with
little to no research experience is not qualified to opine on the veracity of statistical studies.
Last, Lappert is qualified to testify to his personal, anecdotal experience treating
patients who sought treatment to, in Lappert’s words, “de-transition.” He is not qualified,

however, to offer expert opinions on the rates of desistance and “de-transitioning” among
gender dysphoric patients generally for the reasons above.
ii. Relevance
Lappert’s testimony concerning surgical risks, the role of the surgeon under WPATH,
the plastic surgeon community, and anecdotal experience with “de-transitioning” are all
relevant to assessing whether the Plan’s exclusion is substantially related to the state’s interest

in protecting employees and the public from ineffective medical treatments. His testimony
concerning informed consent, however, is irrelevant. First, his testimony that Plaintiff
Thonen-Fleck was incapable of giving informed consent is based on his age, history with
mental illness, and lack of medication. (ECF No. 211-2 at 53–54.) Even if true, Lappert does
not dispute that Thonen-Fleck’s father was able to (and did) give informed consent. (See ECF
No. 179-3 ¶ 13 (“Based on medical advice, I understand this surgery to have been medically

necessary.”).) Lappert’s broader discussion of informed consent merely sets up his conclusion
that surgeons are not adhering to that standard of care generally—a speculative conclusion
that is not supported by any survey or data, scientific or otherwise. Thus, Lappert’s discussion
of informed consent is not admissible.

iii. Reliability
First, Lappert’s testimony concerning the risks associated with certain surgeries appears
to be based on his professional experience and training and sufficiently reliable to be admitted
under Rule 702. Additionally, his anecdotal testimony concerning “de-transitioning” is
admissible but is not a reliable basis for any broader opinion about the rates of desistance, the
likelihood that gender dysphoric patients will later “de-transition,” or the general efficacy of

surgical treatment for gender dysphoria.
Second, his testimony concerning the role of the surgeon under the WPATH
guidelines, and more specifically his criticism that surgeons are not able or required to verify
a gender dysphoria diagnosis, appears to arise from his extensive experience as a plastic
surgeon and is admissible. However, his broader criticism of WPATH-7 appears to be
unscientific opinion and speculation. (ECF No. 209-3 at 184:3-6, 186:23–187:5, 188:15-18

(conceding that he has “not been involved with the development” of WPATH-7, does not
“know what kind of scientific literature [review] the WPATH conducted as part of drafting”
WPATH-7, and is “not an expert on how Version 7 of the WPATH was developed”).)
Likewise, in addition to not being qualified in endocrinology or psychiatry, he has not shown
the reliability of his criticisms of the Endocrine Society’s Guidelines for Treatment of Gender
Dysphoria, (id. at 200:12-18 (agreeing that he is “not an expert in how the Endocrine Society

developed” its guidelines)); the DSM-5, (id. at 193:14-18 (agreeing that he “do[es] not have
expert firsthand knowledge of how the DSM-5 was developed”); the AMA’s position on these
treatments, (id. at 47:13-18 (stating he does not have “personal knowledge” of “how the AMA
came to issue [its] consensus statement”)); or the American Academy of Pediatrics’ position,

(id. at 48:14-23 (admitting he has no “personal knowledge” of how the position was adopted)).
And as with Dr. Hruz and Dr. McHugh, Lappert’s analogy of treatments of gender dysphoria
to eugenics efforts in the early and mid-twentieth century lack any reference to what scientific
methodology he used to compare and contrast the treatments.
Third, Lappert has provided the Court with no data or methodology used to draw his
conclusion that surgical treatment for gender dysphoria has “never been generally accepted by

the relevant scientific community.” (See ECF No. 215-4 at 22.) Lappert agrees that “every
major expert medical association disagrees with [him]” and have “all taken [the] position that
this treatment is in fact medically necessary,” (ECF No. 209-2 at 40:15-22), and virtually every
major health insurer agrees, (id. at 384:21–385:3, 427:4–428:7, 430:12–431:6, 434:17–434:20;
see ECF Nos. 209-10 at 2; 209-11 at 1–4; 209-12 at 3–8; 209-13 at 2–3)). There is no evidence
that he has conducted any surveys that would support his repeated conclusory claims

concerning the “relevant scientific communities (biology, genetics, neonatolgy [sic], medicine,
psychology, etc.).” (ECF No. 215-4 at 40.) Thus, Defendants have failed to meet their burden
to show that this testimony is based on reliable science.
Finally, Lappert makes repeated references in his report to a “Transgender Treatment
Industry (‘TTI’).” (See id. at 12.) He opines that “[m]embers of the TTI have a vested interest
in believing that science has already justified their existence,” asks “[w]ill one day the medical

profession look at support for transitioning youth in the same manner the eugenics movement
is now regarded?”, and hypothesizes that healthcare providers “want the patient to suffer
depression and anxiety [because] such untreated suffering motivates vulnerable patients to undergo the
often painful and damaging experimental ‘transitioning’ process.” (Id. at 12, 15.) In his

deposition, however, he made clear that he does not “know where [the term TTI] came from”
does not “know who originated it,” and doesn’t “know even if it was me that originated it,
actually.” (ECF No. 209-3 at 19:19–20:2.) He is not aware of any peer-reviewed scientific
article that has used that term. (Id. at 20:17-21.) Thus, the Court finds that references to a
Transgender or Gender Treatment Industry and related conspiratorial accusations are nothing
more than rank speculation designed to distract or inflame the jury and has no business in

expert testimony.
Accordingly, Plaintiffs’ motion will be granted in part and denied in part, and Lappert
is limited to testifying to (1) the risks associated with the surgeries at issue in this case; (2) his
anecdotal experience treating patients seeking to “de-transition”; and (3) the WPATH
recommended role of the surgeon in treating gender dysphoria as compared to the role of the
surgeon in other surgical contexts.

E. Stephen B. Levine, M.D. (ECF No. 212)
Dr. Stephen B. Levine is a licensed physician and Clinical Professor of Psychiatry at
Case Western Reserve University School of Medicine. (ECF No. 215-1 ¶ 1.) He holds an
M.D. from Case Western and has received numerous grants for scientific research and
program development. (Id.) He maintains an active private clinical practice and specializes in
treatment of “psychological problems and conditions relating to sexuality and sexual relations

including sexual identity issues, therapies for sexual problems, and the relationship between
love and intimate relationships and wider mental health.” (Id. ¶¶ 1–2.) He is the recipient of
the Masters and Johnson Lifetime Achievement Award from the Society of Sex Therapy and
Research and is a Distinguished Life Fellow of the American Psychiatric Association. (Id. ¶ 2.)

He serves as Co-Director of the Gender Diversity Clinic, which he founded at Case Western
in 1974. (Id. ¶ 3.) He has treated dozens of transgender patients through the clinic and
supervised other therapists. (Id.) He was an early member of the organization now called
WPATH and served as the Chairman of the WPATH Standards of Care Committee that
developed WPATH-5. (Id.)
Levine’s testimony primarily falls into three categories: the risks of medical and surgical

treatment to children, the function of WPATH, and the quality of research supporting medical
and surgical care for gender dysphoria. First, he testifies that “active affirmation of
transgender identity in young children . . . raises ethical and public health concerns.” (Id.
¶ 8(e).) He testifies that healthcare providers should “delay any transitions [until] after the
onset of puberty,” that “encouraging social transition in children remains controversial,” that a majority
of prepubescent children diagnosed with gender dysphoria will desist, and that mental health

professionals should employ psychotherapy and a “watchful waiting approach” in treating
children with gender dysphoria. (Id. ¶¶ 29, 38, 54, 62.) Second, he “provide[s] some context
concerning” WPATH, which he calls a “private, activist, non-science, organization.” (Id.
¶¶ 45–53.) Finally, he testifies that the scientific research demonstrating the benefits of
medical and surgical treatments of gender dysphoria are of “low quality.” (Id. ¶ 68(g).)
Notably, Levine does not testify that medical and surgical care for gender dysphoria is

categorically inappropriate. (See, e.g., id. ¶ 43 (“In my opinion, it is not possible to make a
single, categorical statement about the proper treatment of children presenting with gender
dysphoria or other gender-related issues.”) Despite his view that only “low quality” evidence
supports the efficacy of these treatments, he does not advocate for “denying endocrine

treatment or surgical treatment” to all transgender people, a position he calls “draconian,”
(ECF No. 213-3 at 73:4-7, 84:21–85:11, (“I’m not advocating denying endocrine treatment or
surgical treatment.”), 152:1-6, 160:23-25 (“I did not say that gender affirming treatment in
general should be stopped. I’ve never said that.”).) He concedes that he does not know how
often medical or surgical care helps alleviate symptoms of gender dysphoria and does not offer
an opinion as to the portion of these procedures that are necessary and unnecessary. (Id. at

67:24–68:3 (“It is not our [clinic’s] knowledge base to know who’s going to do better and
who’s going to do worse and who is not going to have any difference at all with hormones or
with surgery.”).) He testifies that this lack of high-quality evidence should encourage
physicians treating gender dysphoria to be “cautious” and that transgender patients “have a
right to be more fully informed” about the risks and rewards of such care, but ultimately agrees
that “doctor[s] need to decide” when medical and surgical care is necessary on “a case-by-case

basis.” (Id. at 152:20-25; ECF No. 215-1 ¶ 126 (“Science not politics needs to drive trans
care.”).) In his own practice, Levine adheres to the WPATH Standards of Care and personally
provides letters of authorization for medical and surgical treatments for his gender dysphoric
patients after advising them on the risks associated with those treatments. (ECF No. 213-3 at
55:13-17, 56:2-5, 112:16-21, 176:8-16, 225:24–226:17.) Levine testifies anecdotally that “[i]n
[his] experience,” mental health providers “too often encourage or permit decision based on

a great deal of patient and professional blind optimism” and fail to adequately inform patients
of the inadequacies in the research supporting treatments for gender dysphoria. (ECF No.
215-1 ¶ 105.) He does not offer any quantifiable metrics to identify how many doctors provide
informed consent and proceed with caution, and how many do not.

Based on the preponderance of the evidence, the Court finds that Levine is qualified
as both a mental health provider and researcher. He is qualified to offer expert testimony on
the treatment of gender dysphoria and the efficacy and findings of research studies evaluating
gender dysphoria treatments. His personal work treating transgender patients, extensive
experience conducting scientific research, review of the relevant literature, and thorough
discussion of relevant scientific studies in his report qualify him as an expert witness. The

Court additionally finds the following:
First, Levine’s testimony concerning the risks of medical and surgical treatment for
adolescents is relevant to assessing whether the Plan’s exclusion is substantially related to
Defendants’ governmental interest in protecting employees and the public from ineffective
medical treatments. However, Levine’s criticism of medical or surgical treatment of gender
dysphoria in prepubescent children is not relevant, as Plaintiffs have conceded that such

treatments are not medically necessary until the onset of puberty. See Section II.B, supra.
Likewise, Levine’s opinions on mental health approaches to social transition are irrelevant as
well, as Defendants maintain that the Plan’s exclusion of coverage for mental health treatments
of gender dysphoria has never been given effect and is no longer part of the Plan. (See ECF
Nos. 137 n.2; 137-4 ¶ 27.)
Second, Levine is qualified by his personal experience with WPATH to provide

background and critique the WPATH Standards of Care. This testimony is relevant to rebut
Plaintiffs’ experts who appear to use and rely in part on the WPATH-7 and is reliably based
on Levine’s expert knowledge and personal experience with the organization.
Third, Levine’s analysis of the relevant scientific research supporting gender affirming

medical care is relevant to assessing whether the Plan’s exclusion is substantially related to
Defendants’ governmental interest in protecting employees and the public from ineffective
medical treatments. Further, his opinion that the available scientific research is of “low
quality” appears reliably based on his review of the relevant literature, experience conducting
scientific research, and a “widely accepted hierarchy of reliability” that distinguishes between
case studies on the “low” end and randomized double-blind clinical trials on the “high” end.

(See ECF No. 215-1 ¶ 68.) His criticism of the methodology of some of these studies similarly
appears reliable.3 (Id. ¶¶ 74–79.)
However, Levine’s testimony regarding desistance rates does not appear to be based
on reliable methodology. During deposition, Levine was unable to recall many of the studies
that purportedly support his conclusion. (ECF No. 213-3 at 191:20-192:14.) His anecdotal
testimony concerning adults and adolescents who regret their transitions appears to be based

on a misreading of an article that reviewed entries on the website Reddit. (See ECF No. 215-
1 ¶¶ 35, 56, 98.) He admitted during deposition that the article referred to 16,000 entries—
not 60,000, as he repeatedly stated in his report—and that he had no knowledge of the content

3 Contrary to Plaintiffs’ characterization, Levine does not testify that medical or surgical treatment of
gender dysphoria increases a patient’s chance of negative mental health outcomes, but rather that, in his
view, no reliable studies show that such treatments reduce the likelihood of such outcomes. (ECF No.
215-1 ¶¶ 74–79.)
of those entries or whether any of the authors actually de-transitioned or regret their
transitions. (Id. at 196:3-7, 201:12-25)
Fourth, as discussed, it does not appear that he offers any categorical opinion as to the

medical necessity of medical and surgical treatments of gender dysphoria, nor does he testify
that healthcare providers are prescribing such treatment without due caution and informed
consent beyond his anecdotal “experience.” To the extent that Defendants seek to introduce
testimony from Levine to that effect, he has not provided the Court with any data or
methodology from which such claims could be made. Levine has conducted no research to
identify which physicians are proceeding as he does and which do not, rendering any broader

opinion about the practice of such healthcare providers pure speculation.
Finally, for the same reasons identified regarding Dr. Lappert, supra, Levine’s reference
to a “Transgender Treatment Industry” does not appear to be based on any science
whatsoever and is not admissible.
In sum, Plaintiffs’ motion will be granted in part and denied in part, and Levine’s
testimony will be limited to (1) identifying risks associated with prescribing medication and

surgery to adolescents, (2) discussing WPATH, and (3) criticizing the quality of the research
on treatments for gender dysphoria.
III. MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs argue that they are entitled to summary judgment on their three claims arising
under the Equal Protection Clause, Title VII, and the ACA. (ECF No. 179.) DPS argues that
it is entitled to summary judgment on Plaintiff Caraway’s Title VII claim. (ECF No. 133.)
Plan Defendants argue that NCSHP is entitled to summary judgment on Plaintiff’s Title VII
and ACA claims. (ECF No. 136.) The Court will address each claim in turn.
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A dispute is genuine if a reasonable jury could return a verdict for the
nonmoving party.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015)
(internal citations and quotations omitted). “[I]n deciding a motion for summary judgment, a
district court is required to view the evidence in the light most favorable to the nonmovant”
and to “draw all reasonable inferences in his favor.” Harris v. Pittman, 927 F.3d 266, 272 (4th

Cir. 2019) (citing Jacobs, 780 F.3d at 568). A court “cannot weigh the evidence or make
credibility determinations,” Jacobs, 780 F.3d at 569 (citations omitted), and thus must “usually”
adopt “the [nonmovant’s] version of the facts,” even if it seems unlikely that the moving party
would prevail at trial, Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011)
(quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).
Where the nonmovant will bear the burden of proof at trial, the party seeking summary

judgment bears the initial burden of “pointing out to the district court . . . that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). If the moving party carries this burden, then the burden shifts to the
nonmoving party to point out “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In so doing, “the
nonmoving party must rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash
v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Instead, the nonmoving party must support
its assertions by “citing to particular parts of . . . the record” or “showing that the materials
cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1); see also

Celotex, 477 U.S. at 324. Expert testimony must be admissible to create a genuine issue of
material fact. See Cavallo v. Star Enter., 100 F.3d 1150, 1159 (4th Cir. 1996).
A. Equal Protection Clause
The Fourteenth Amendment to the U.S. Constitution prohibits states from denying
“to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. The Equal Protection Clause is “essentially a direction that all persons similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
When considering an equal protection claim, a court must determine (1) “what level of scrutiny
applies” and (2) “whether the law or policy at issue survives such scrutiny.” Grimm v. Gloucester
Cty. Sch. Bd., 972 F.3d 586, 607 (4th Cir.), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878
(2021).
i. The Plan facially discriminates based on sex and transgender status

“In determining what level of scrutiny applies to a plaintiff’s equal protection claim, we
look to the basis of the distinction between the classes of persons.” Id. (citing United States v.
Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)). Generally, a state policy “is presumed to
be valid and will be sustained if the classification drawn by the [policy] is rationally related to
a legitimate state interest.” Cleburne, 473 U.S. at 440. This general rule “gives way,” however,
when the policy discriminates based on membership in certain suspect classes. Id. In the

Fourth Circuit, laws that discriminate based on sex or transgender status receive intermediate
scrutiny. Grimm, 972 F.3d at 608, 610. Such policies are unconstitutional “unless [they are]
substantially related to a sufficiently important governmental interest.’” Id. at 608 (quoting
Celburne, 473 U.S. at 441).

To show that a policy discriminates based on sex or transgender status, a plaintiff must
show discriminatory intent and disproportionate impact. See Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265 (1977). “No inquiry into legislative purpose is necessary,”
however, when the suspect classification “appears on the face” of the policy. Shaw v. Reno,
509 U.S. 630, 642 (1993). A policy that facially discriminates based on membership in a suspect
class is “immediately suspect because, ‘[a]bsent searching judicial inquiry . . . , there is simply

no way of determining what classifications are “benign” or “remedial” and what classifications
are in fact motivated by illegitimate’” governmental objectives. Id. at 642–43 (quoting Richmond
v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)); see also Pers. Adm’r of Mass. v.
Feeney, 442 U.S. 256, 273 (1979) (“Classifications based upon gender, not unlike those based
upon race, have traditionally been the touchstone for pervasive and often subtle
discrimination.”).

A facial inquiry is what it sounds like: a review of the language of the policy to see
whether it is facially neutral or “deal[s] in explicitly racial [or gendered] terms.” Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457, 485 (1982) (citing Hunter v. Erickson, 393 U.S. 385 (1969)).
A policy that uses racial or gendered terms “falls into an inherently suspect category” even if
it creates classifications that are not “obviously pernicious.” Id. at 485, 487. The “crucial
difference” between facially discriminatory and facially neutral laws is that the former “plainly

rests on distinctions based on” a suspect classification. Id. at 485 (internal quotations omitted).
In Grimm, the Fourth Circuit held that a school policy limiting students to use of the
restroom and locker room facility that corresponded to their “biological genders”
discriminated on its face based on sex. Grimm, 972 F.3d at 608–10. First, it reasoned that the

policy “necessarily rests on a sex classification” and “cannot be stated without referencing
sex.” Id. at 608. Second, the court found that the policy “subjected [plaintiff] to sex
discrimination because he was viewed as failing to conform to the sex stereotype propagated
by the Policy.” Id. at 608. Thus, the Fourth Circuit applied intermediate scrutiny. Id. at 609.
Additionally, the court held that the bathroom policy facially discriminated against
plaintiff based on his status as a transgender boy. Id. at 613. The court identified transgender

individuals as a quasi-suspect class consisting of those “who consistently, persistently, and
insistently express a gender that, on a binary, we would think of as opposite to their assigned
sex.” Id. at 594, 613 (internal quotations omitted). The court then held that the policy—which
provided “alternative appropriate private facilit[ies]” for students “with gender identity
issues”— facially discriminated against plaintiff based on his membership in this class. Id. at
609, 613.

Here, the Plan excludes “[t]reatment or studies leading to or in connection with sex
changes or modifications and related care.” (ECF No. 184 at 67 (emphasis added).) This
exception does not identify any diagnoses or treatments. Instead, the broad language of the
Plan distinguishes between medically necessary4 treatments that align with the member’s

4 Defendants dispute that the treatments excluded by the Plan are medically necessary in fact.
However, the Plan already limits coverage to treatments that are medically necessary. (ECF No. 137-
2 at 58:4-7.) Thus, for purposes of this facial inquiry alone, the exclusion only applies to treatments
that are otherwise considered medically necessary.
biological sex and medically necessary treatments—often the same medically necessary
treatments—that do not align with his sex.
These exclusions facially discriminate based on sex and transgender status. First, like

in Grimm, this exclusion “necessarily rests on a sex classification” because it cannot be stated
or effectuated “without referencing sex.” See Grimm, 972 F.3d at 608; c.f. Hunter, 393 U.S. at
391. As reasoned by the U.S. Supreme Court, “try writing out instructions” for which
treatments are excluded “without using the words man, woman, or sex (or some synonym).
It can’t be done.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1746 (2020). It is impossible to
determine whether a particular treatment is connected to “sex changes or modifications and

related care”—and thus, whether the exclusion applies—without comparing the member’s
biological sex before the treatment to how it might be impacted by the treatment.
Second, the Plan overtly discriminates against members for “failing to conform to the
sex stereotype propagated by the [Plan].” See Grimm, 972 F.3d at 608. The Plan expressly
limits members to coverage for treatments that align their physiology with their biological sex
and prohibits coverage for treatments that “change or modify” physiology to conflict with

assigned sex. For example, puberty suppressing medication may be covered if medically
necessary. (See, e.g., ECF Nos. 201-1 at 4–22). But a transgender boy will not receive coverage
for such medication—even if medically necessary—because, in the language of the Plan, it
would “change or modify” his physiology in a way that does not match his female biological
sex. (See id.) This is textbook sex discrimination. Grimm, 972 F.3d at 608; see generally Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion) (holding that employers who

“insist[ed] that [individuals] matched the stereotype associated with their group” committed
sex discrimination under Title VII); Bostock, 140 S. Ct. at 1741 (“[A]n employer who fires a
woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being
insufficiently masculine may treat men and women as groups more or less equally. But in both

cases the employer fires an individual in part because of sex.”).
Third, the Plan also transparently discriminates against its transgender members. As
mentioned, the quasi-suspect class identified by the Fourth Circuit is defined as those “who
consistently, persistently, and insistently express a gender that, on a binary, we would think of
as opposite to their assigned sex.” Grimm, 972 F.3d at 594. Transgender men are men;
transgender women are women. Id. at 610 (“[Plaintiff] did not question his gender identity at

all; he knew he was a boy.”). This holding by the Fourth Circuit is likewise supported by the
undisputed evidence in this case. (See, e.g., ECF Nos. 179-2 ¶¶ 2–3 (“I am a 19-year-old man.
I am also transgender.”); 179-5 ¶¶ 2, 4 (“I am a boy. . . . I am transgender, which means that
I was designated ‘female’ at birth, even though I am and identify as male.”); 137-2 at 85:10–
87:22 (stating that NCSHP members may align their sex identification marker in NCSHP’s
records with their gender identity without proof of their physical anatomy, DNA, or

chromosomal make up); see also ECF No. 219 at 6 (“A transgender man is a man. A
transgender woman is a woman.”).) Under the Plan, however, transgender members are
classified as seeking to “change or modify” their gender or sex while cisgender members are
not. So, a cisgender man who receives medically necessary testosterone is covered, while a
transgender man who receives medically necessary testosterone is not. Like in Grimm, the Plan
“privileges sex-assigned-at-birth over [Plaintiffs’] medically confirmed, persistent and

consistent gender identity.” Grimm, 972 F.3d at 610. Thus, it will receive intermediate scrutiny.
Defendants raise four arguments against finding that the Plan discriminates based on
sex or transgender status.
First, Defendants argue that the Plan does not discriminate based on sex or transgender

status but based on diagnosis. (ECF No. 197 at 28.) Specifically, they characterize the Plan
as covering medically necessary treatments for some ailments but not for others, such as
gender dysphoria. (Id.) Some Plan administrators do consider the exclusions to be “blanket
exclusions for the treatment of gender dysphoria.” (See, e.g., ECF No. 185-2 at 34.) However,
whether a policy is facially discriminatory is determined with reference to the language of the
policy, not the underlying intent of its adopters or administrators. Int’l Union, United Auto.,

Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199
(1991) (“[T]he absence of a malevolent motive does not convert a facially discriminatory policy
into a neutral policy with a discriminatory effect.”). Thus, Defendants’ evidence does not
create a genuine issue of material fact as to whether the Plan discriminates on its face. 5
Further, even if the Court credited Defendant’s characterization of the Plan as applying
only to diagnoses of gender dysphoria, it would still receive intermediate scrutiny.

Discrimination against individuals suffering from gender dysphoria is also discrimination
based on sex and transgender status. As with the Plan’s exclusions, one cannot explain gender
dysphoria “without referencing sex” or a synonym. See Grimm, 972 F.3d at 608. A hypothetical
from the Supreme Court is directly on point:

5 Moreover, undisputed evidence shows the exclusions do not simply attach to treatments related to a
diagnosis of gender dysphoria in practice. As discussed, preauthorization for some surgeries is denied
due to the exclusion “regardless of the diagnostic code,” and preauthorization for others is denied if
the procedural code accompanying the treatment is “transsexualism” or “personal history of sex
reassignment.” (ECF No. 197-14 ¶¶ 20–21.)
Suppose an employer asked homosexual or transgender applicants to tick a box
on its application form. The employer then had someone else redact any
information that could be used to discern sex. The resulting applications would
disclose which individuals are homosexual or transgender without revealing
whether they also happen to be men or women. Doesn’t that possibility indicate
that the employer’s discrimination against homosexual or transgender persons
cannot be sex discrimination?

No, it doesn’t. . . . There is no way for an applicant to decide whether to check
the homosexual or transgender box without considering sex. To see why,
imagine an applicant doesn’t know what the words homosexual or transgender
mean. Then try writing out instructions for who should check the box without
using the words man, woman, or sex (or some synonym). It can’t be done.

Bostock, 140 S. Ct. at 1746. The same is true here. Even if Plan administrators see only a box
checked “gender dysphoria,” the diagnostician cannot know whether to check that box
without considering sex.6 Defendants’ first argument is unpersuasive.
Second, Defendants argue that Plaintiffs are not similarly situated to members who
receive similar treatments for different diagnoses. (ECF No. 197 at 29.) Members who receive
hormone therapy, testosterone, or a mastectomy for gender dysphoria, they argue, are not
similarly situated to members who seek those same treatments for prostate, testicular, or breast
cancer. (Id.) This argument, however, is a justification for Defendants’ facial sex and
transgender discrimination, not an argument that the exclusions are facially neutral. See Tuan
Anh Nguyen v. I.N.S., 533 U.S. 53, 62–64, 73 (2001) (conducting “similarly situated” analysis of
a facially discriminatory law in its application of intermediate scrutiny rather than to determine
what level of scrutiny applied). It is sufficient at this stage that those affected and unaffected

6 Defendants argue that “[h]ealthcare providers must know a patient’s sex for every medical diagnosis,”
(ECF No. 197 at 32), but this argument misstates the issue. Gender dysphoria cannot be explained at
all without reference to sex, while most other diagnoses—even those that are specific to members of
only one sex—can be explained neutrally.
by the exclusion are all members of the Plan who seek similar or identical treatments. The
factor used by the Plan to distinguish between covered and uncovered treatments is that the
later “change or modify” the patient’s assigned sex. Other factors not evidenced on the face

of the Plan that may distinguish the two groups are not proper for consideration at this stage
in the Court’s analysis. See Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994) (“The
similarly situated inquiry focuses on whether the plaintiffs are similarly situated to another
group for purposes of the challenged government action. . . . [It] depends on what government action
the plaintiffs are challenging.” (emphasis added)).
Third, Defendants argue that the Plan does in fact cover many over-the-counter

pharmaceuticals regardless of transgender status because neither the Plan nor its
administrators “ever know the reason” for such purchases. (ECF No. 197 at 26.) But a policy
that makes coverage turn on sex or transgender status receives heightened scrutiny even if
administrators do not actually know members’ sex or transgender status in practice. C.f.
Bostock, 140 S. Ct. at 1746 (“By intentionally setting out a rule that makes hiring turn on [sex],
the employer violates the law, whatever he might know or not know about individual

applicants.”). A facially discriminatory policy likewise receives heightened scrutiny even if it
is not applied in all cases. See, e.g., Fisher v. Univ. of Tex. at Austin, 579 U.S. 365, 384 (2016)
(applying heightened scrutiny to a race-conscious admissions policy even though “race
consciousness played a role in only a small portion of admissions decisions”).
Fourth, Defendants analogize this case to Geduldig v. Aiello, 417 U.S. 484 (1974). In
Geduldig, the Supreme Court held that a state health program that denied coverage for

pregnancy did not discriminate based on sex. Id. at 494. The Court reasoned that the program
did “not exclude anyone from benefit eligibility because of gender but merely remove[d] one
physical condition—pregnancy—from the list of compensable disabilities.” Id. at 496 n.20.
“Normal pregnancy is an objectively identifiable physical condition with unique

characteristics,” and while “only women can become pregnant,” the group of members who
are not pregnant “includes members of both sexes.” Id. But the same cannot be said here.
The Plan does not merely exclude one “objectively identifiable physical condition with unique
characteristics” from coverage; rather, it excludes treatments that lead or are connected to sex
changes or modifications. Pregnancy can be explained without reference to sex, gender, or
transgender status.7 The same cannot be said of the exclusion at issue here.

In sum, there is no genuine issue of material fact about the language of the Plan: it
facially discriminates based on sex and transgender status. The Court will accordingly apply
intermediate scrutiny.
ii. Defendants have not established a genuine issue of material fact as to
whether the Plan is substantially related to an important governmental
interest
Policies that discriminate based on sex or transgender status are unconstitutional
“unless [they are] substantially related to a sufficiently important governmental interest.”
Grimm, 972 F.3d at 608 (quoting Celburne, 473 U.S. at 441). To survive intermediate scrutiny,

7 Pregnancy, Dorland’s Illustrated Medical Dictionary (33d ed. 2020) (“[T]he condition of having a
developing embryo or fetus in the body, after union of an oocyte and spermatozoon.”); Pregnant,
American Heritage Medical Dictionary (2d ed. rev. 2007) (“Carrying developing offspring within the
body); see Pregnant, Merriam-Webster, https://www.merriam-webster.com/dictionary/pregnant (last
updated May 25, 2022) (“containing a developing embryo, fetus, or unborn offspring within the
body”). But see Pregnancy, Stedman’s Medical Dictionary (28th ed. 2006) (“The state of a female after
conception and until the termination of the gestation.”).
the state bears the burden to “provide an ‘exceedingly persuasive justification’ for its
classification.” Id. (quoting United States v. Virginia, 518 U.S. 515, 534 (1996)).
Defendants raise two justifications for the relevant exclusions. First, they argue that

the exclusions limit health care costs. (ECF No. 197 at 40.) Until 2018, North Carolina
provided free health insurance to its public employees. (ECF No. 137-2 at 106:2-4.) When
the North Carolina General Assembly limited increases in its contribution to the Plan in 2016
to 4% per year, however, NCSHP was unable to keep up with the rapid 7% annual increase in
healthcare costs. (Id. at 102:22-24.) At Defendant Folwell’s direction, NCSHP cut benefits
and charged employees premiums for the first time. (Id. at 102:19-21, 106:2-4.) Now, “a

whole lot of employees have to work one week out of a month just to cover their Health Plan
for their family.” (Id. at 105:22-24.)
While such a justification may be sufficient under the rational basis test, see Geduldig,
417 U.S. at 496, a state may not “protect the public fisc by drawing an invidious distinction
between classes of its citizens” under heightened scrutiny, Mem’l Hosp. v. Maricopa Cnty., 415
U.S. 250, 263 (1974). That is especially true here, as the estimated $300,000–$900,000 saved

by the exclusion per year pales in comparison to NCSHP’s billion-dollar cash balance and
saves each of the Plan’s 740,000 members about one dollar each. Such a paltry limit on health
care costs is not an important governmental interest.
Second, Defendants argue that the relevant treatments excluded by the Plan are not
effective. (ECF No. 197 at 11–17.) Viewed in the abstract, the Court finds that withholding
Plan funds from ineffective medical treatments serves an important governmental interest.

The state has an obvious interest in protecting its employees and their families from ineffective
medical treatments and a derivative interest in reducing the prevalence of such treatments
generally by cutting them off from access to the Plan’s considerable resources. (See ECF No.
137-1 at 35:7-12 (stating that the Plan is the largest purchaser of healthcare and

pharmaceuticals in North Carolina)). Protecting public health is an important governmental
interest. Eline v. Town of Ocean City, 7 F.4th 214, 222 n.8 (4th Cir. 2021), cert. denied, 142 S. Ct.
1117 (2022).
Thus, the remaining issue is whether the exclusions are substantially related to
Defendant’s interest in protecting its employees and the public from ineffective medical
treatments.8 Defendants attempt to establish this substantial relationship via their experts’

testimony. However, as found in Part II, supra, much of this testimony is inadmissible.
Inadmissible testimony cannot establish a genuine issue of material fact for purposes of
summary judgment. See Md. Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th
Cir. 1991).
Defendants’ admissible expert testimony, even when taken in the light most favorable
to Defendants, does not support that the Plan’s exclusion substantially excludes treatments

that are ineffective. First, while Dr. Hruz and Dr. Lappert testify that the medicines and
surgeries used to treat gender dysphoria can have serious health risks and consequences, it is

8 Plaintiffs argue “[b]inding circuit precedent recognizes that . . . medical treatments for gender
dysphoria ‘are safe, effective, and often medically necessary.’” (ECF No. 201 at 3 (quoting Kadel v.
N.C. State Health Plan for Tchrs. & State Emps., 12 F.4th 422, 428 (4th Cir.), as amended (Dec. 2, 2021),
cert. denied sub nom. N.C. Health Plan for Tchrs. & State Emps. v. Kadel, 142 S. Ct. 861 (2022)).) However,
the relevant quote comes from the Fourth Circuit’s background discussion of gender dysphoria. See
Kadel, 12 F.4th at 428. This Court does not read the Fourth Circuit’s ruling in Kadel—which concerned
a jurisdictional issue—to resolve this consequential issue as a matter of fact or law. Thus, the
effectiveness of these treatments remains an issue of fact that must be resolved in the first instance.
also undisputed that gender dysphoria is a serious diagnosis that, if left untreated, can lead to
self-mutilation and suicide. NCSHP covers many of these same treatments for other serious
illnesses notwithstanding their risks and side effects. Without evidence that the treatments are

ineffective to treat gender dysphoria, Defendants cannot meet their burden to show that the
risks substantially outweigh the benefits so as to justify their sex- and transgender-based policy.
Second, Defendants point to Dr. Levine’s testimony to argue that these treatments are
categorically ineffective. But that is not Levine’s testimony. He testifies that the available
research is not sufficiently reliable to prove that treatments are effective, but repeatedly and
emphatically testifies that this lack of high-level research is not reason to justify withholding

treatment from all gender dysphoric patients. Rather, he testifies that doctors and patients, when
fully aware of the risks and elusive benefits of available treatments, should decide if medicine
or surgery is necessary as he does in his own practice. This is Plaintiffs’ request: that they and their
doctors, not their sex or transgender status, determine when their treatments are appropriate.
Levine does not and cannot reliably testify as to how often doctors prescribe unnecessary
treatments or fail to obtain informed consent. Thus, Levine’s testimony also does not create

a genuine issue of material fact as to whether the Plan’s exclusion substantially excludes
ineffective treatments.
Finally, anecdotal recounting of individual patient experiences and wholesale criticism
of WPATH, the DSM, and various professional associations, even when taken as true, is
insufficient to meet Defendants’ burden of showing that the Plan’s discriminatory exclusion
is substantially related to an important governmental interest. At most, this evidence
challenges the credibility of some—but not all—of Plaintiffs’ evidence showing that medical
and surgical treatments for gender dysphoria are effective.
Moreover, Defendants have a clear, sex- and transgender-neutral alternative to the

exclusion. In 2017, the Plan covered “medically necessary services for the treatment of gender
dysphoria,” and NCSHP’s third-party administrators, Blue Cross and CVS, appear able to
distinguish between medically necessary and unnecessary treatments. (See, e.g., 185-2 at 89–99
(distinguishing in the Blue Cross Corporate Medical Policy between medically necessary and
unnecessary treatments for gender dysphoria). To the extent that Defendants can anecdotally
establish that some treatments for gender dysphoria are ineffective, they have not offered any

admissible evidence to show that the Plan’s categorical exclusion better protects members
from ineffective treatments than the more narrow exclusion of medically unnecessary treatments
for gender dysphoria. Thus, Defendants cannot meet their burden under intermediate
scrutiny. See Caban v. Mohammed, 441 U.S. 380, 392 (1979) (invalidating an adoption law where
“the State’s interest . . . can be protected by means that do not draw such an inflexible gender-
based distinction.”); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 650 (1974) (invalidating a

maternity policy where a more “narrow method of protecting the school board’s interest in
teacher fitness” was available); see also Cleburne, 473 U.S. at 476 (Marshall, J., concurring in the
judgment in part and dissenting in part) (“When statutes rest on impermissibly overbroad
generalizations, our cases [applying intermediate scrutiny] have invalidated the presumption
on its face.”) (collecting cases).
Thus, Plaintiffs are entitled to summary judgment on their Equal Protection Claim.
B. Title VII
The Court next addresses Plaintiff Caraway’s Title VII claims against DPS and
NCSHP.

It is a violation of Title VII for an employer to “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “Health insurance and other fringe benefits
are ‘compensation, terms, conditions, or privileges of employment’” under Title VII. 9 Newport
News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983).
DPS, NCSHP, and Plaintiffs each move for summary judgement on Plaintiff Caraway’s

Title VII claims. (ECF Nos. 132; 136; 178.) NCSHP argues it is not Caraway’s employer.
(ECF No. 137 at 25–33.) DPS argues that Caraway lacks standing and cannot show that DPS
caused her injury. (ECF No. 133 at 21–22.) Caraway argues that no genuine issue of material
fact exists as to her Title VII claim and she is entitled to judgment as a matter of law as to
liability, “reserving issues of damages . . . for trial.” (ECF No. 179 at 4, 32–37.) The Court
will address these arguments in turn.

i. Plaintiff Caraway
Caraway is a transgender woman and corrections officer for DPS. (ECF No. 179-9
¶¶ 5, 8.) She is required to maintain health insurance by DPS given the nature of her job and
is a member of NCSHP. (Id. ¶ 16.) She was diagnosed with gender dysphoria and began
hormone replacement therapy in mid-2018, and underwent “intersex surgery” and a

9 Whether a benefit is “compensation” under Title VII is a question of federal law, not state law.
Defendants’ contention that the Plan does not constitute compensation under state law is therefore
inapposite.
“mammaplasty” on August 5, 2020. (Id. ¶¶ 19–20; id. at 13.) Due to the exclusion, NCSHP
has only occasionally covered her hormone therapy and did not cover her surgery. (Id. ¶¶ 21,
24, 28; see id. at 13.) She consequently delayed surgery approximately nine months until she

could pay the $27,000 bill out of pocket. (Id. ¶¶ 23–25.) Caraway is still employed with DPS.
(Id. ¶ 6.) Although the treatment she has received “has helped” relieve symptoms from her
gender dysphoria “up to a point,” she anticipates requiring continued hormone treatments and
additional surgery. (Id. ¶¶ 29–33.)
ii. NCSHP is not Caraway’s employer
NCSHP argues that it is not liable to Caraway under Title VII because it is not her

employer. (ECF No. 137 at 25–28.) It is undisputed that Caraway is employed by DPS. (See
ECF No. 179-9 ¶ 5.) Caraway argues that NCSHP is also her employer—and therefore liable
under Title VII—because (1) it is DPS’s agent and (2) DPS and NCSHP jointly employ her.
(ECF No. 188 at 15–18.)
1. NCSHP is not DPS’s agent
Title VII defines “employer” as either “a person engaged in an industry affecting
commerce” that employs fifteen or more employees and “any agent of such a person.” 42

U.S.C. § 2000e(b). An “employer,” in turn, is prohibited from discriminating “against any
individual with respect to [her] compensation, terms, conditions, or privileges of employment”
because of her sex. § 2000e-2(a)(1). “Title VII’s purpose [is to] eliminat[e] discrimination in
employment based on race, color, religion, sex, or national origin.” Butler v. Drive Auto. Indus.
of Am., Inc., 793 F.3d 404, 409 (4th Cir. 2015) (internal quotations omitted). “Title VII should
be liberally construed in light of its remedial purpose . . . [and] such liberal construction is also
to be given to the definition of ‘employer.’” Id. (internal quotations omitted).
Title VII “does not define the term ‘agent.’” Lissau v. S. Food Serv., Inc., 159 F.3d 177,

180 (4th Cir. 1998). In Lissau, the Fourth Circuit held that “individual supervisors are not
liable under Title VII.” Id. at 181. Rejecting an argument that an individual supervisor may
be held liable as the “agent” of the employer, the court “interpret[ted] the inclusion of agent
in Title VII’s definition of employer simply to establish a limit on an employer’s liability for
its employees’ actions.” Id. at 180; see also Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510
(4th Cir. 1994) (reading an identical provision in the Age Discrimination in Employment Act

to be “an unremarkable expression of respondeat superior—that discriminatory personnel
actions taken by an employer’s agent may create liability for the employer”).
The Fourth Circuit has not addressed the present situation where a plaintiff alleges that
an entity, rather than an individual supervisor, is liable under Title VII by virtue of being an
agent. (See ECF No. 74 at 22–24.) Other circuits have held “that Title VII plaintiffs may
maintain a suit directly against an entity acting as the agent of an employer, but only under

certain circumstances.” Alam v. Miller Brewing Co., 709 F.3d 662, 668–69 (7th Cir. 2013)
(citations omitted). These circuits recognize agency liability where the agent “exercise[s]
control over an important aspect of [the plaintiff’s] employment,” Carparts Distrib. Ctr., Inc. v.
Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 17 (1st Cir. 1994); where the agent
“significantly affects access of any individual to employment opportunities,” Spirt v. Teachers
Ins. & Annuity Ass’n, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated and remanded on other grounds,

463 U.S. 1223 (1983); or where “an employer delegates sufficient control of some traditional
rights over employees to a third party,” Nealey v. Univ. Health Servs., Inc., 114 F. Supp. 2d 1358,
1367 (S.D. Ga. 2000) (quoting Lyes v. City of Riviera Beach, 166 F.3d 1332, 1341 (11th Cir. 1999)).
Here, even if the Court were to assume that entities may be held liable as agents under

Title VII in the Fourth Circuit, Caraway has failed to show that NCSHP operates as DPS’s
agent.10 At common law, “[a]n agent is one who consents to act on behalf on another and
subject to the other’s control.” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 996
(6th Cir. 1997) (citing Restatement (Second) of Agency § 1 (1958)); see Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 72 (1986) (interpreting Title VII’s definition of “employer” and use of
the term of “agent” against a common law backdrop). Plaintiffs have submitted no evidence

that NCSHP is subject to DPS’s control. On the contrary, it appears undisputed that “state
law delegates control over employee health coverage to NCSHP.” (ECF No. 188 at 18 (citing
N.C. Gen. Stat. § 135-48.2(a)).) Although DPS provides the Plan to its employees and assists
in its implementation, see Section III.B.iii, infra, DPS has no legal control over NCSHP or the
Plan, see generally §§ 135-48.1–48.62, and Carraway has failed to produce any evidence to show
that DPS has control over NCSHP in fact.

2. NCSHP is not a joint employer
An individual may have more than one employer within the meaning of Title VII.
Butler, 793 F.3d at 408. The “principal guidepost” to observe in determining an employee’s

10 In its March 5, 2021, Order, this Court concluded that Lissau nor Birkbeck control this case, as those
cases concern individual supervisors sued in their individual capacities. (ECF No. 74 at 22–24.)
Consequently, the Court held that Caraway’s Title VII claims against NCSHP were not futile and
allowed Plaintiffs to amend their Complaint. (Id. at 24.) The Court does not disturb that reasoned
conclusion here. Rather, the Court finds that Plaintiffs have not submitted sufficient evidence at the
summary judgment stage to create a genuine issue of material fact as to whether NCSHP is DPS’s
agent.
employers is “‘the common-law element of control,’ drawn from the law of agency.” Id. at
409 (quoting Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 (2003)). In Butler,
the Fourth Circuit adopted a nine-factor test to determine whether a Title VII plaintiff “is

jointly employed by two or more entities.” Id. at 414. These factors are:
(1) authority to hire and fire the individual;

(2) day-to-day supervision of the individual, including employee discipline;

(3) whether the putative employer furnishes the equipment used and the
place of work;

(4) possession of and responsibility over the individual’s employment
records, including payroll, insurance, and taxes;

(5) the length of time during which the individual has worked for the
putative employer;

(6) whether the putative employer provides the individual with formal or
informal training;

(7) whether the individual’s duties are akin to a regular employee’s duties;

(8) whether the individual is assigned solely to the putative employer; and

(9) whether the individual and putative employer intended to enter into an
employment relationship.

Id. “[N]one of these factors are dispositive and . . . courts can modify the factors to the specific
industry context.” Id. Generally, however, the first three of these factors will be “most
important,” and the ninth factor will be “of minimal consequence.” Id. at 414, 414 n.12.
Here, there is no evidence that NCSHP has authority to hire, fire, supervise, or
discipline Plaintiff Caraway (factors one and two). (ECF Nos. 137-12 at 101:6–102:11, 104:1-
15, 105:20-25; 137-13 at 34:4-18, 39:16-18.) NCSHP does not provide her with any equipment
or workplace (factor three), (ECF Nos. 137-12 at 102:9-10, 111:4-19; 137-13 at 45:9-16), or
training (factor six), (ECF Nos. 137-12 at 99:10-20; 137-13 at 37:12-16, 48:8-13). Caraway has
never been assigned to perform work for NCSHP (factors five and eight), (ECF No. 137-12
at 93:7-16), and as a prison guard, her duties are not akin to duties of NCSHP’s employees,

which include managing implementation of the Plan (factor seven), (see, e.g., ECF No. 137-2
at 69:23–70:8). There is no evidence NCSHP or Caraway intended to enter into an
employment relationship (factor nine). (See ECF No. 137-12 at 93:7-16 (“The only employer
I worked for in the last 27 years . . . was [DPS].”).) Finally, while it is possible that NCSHP
possessed some of Caraway’s insurance records (factor four), she has failed to identify
evidence in the record to support this inference.

Plaintiffs argue that NCSHP is an employer because it exercises “‘control’ over the
health coverage relevant to this case.” (ECF No. 188 at 18.) The guidepost identified in
Clackamas and Butler, however, is not control over one aspect of employment, but rather
“practical control of the employee.” Butler, 793 F.3d at 414; see Clackamas, 538 U.S. at 448
(“[T]he relevant factors defining the master-servant relationship focus on the master’s control
over the servant.” (emphasis added)). A joint employer need not have total control over all

aspects of the employment; however, Plaintiffs have cited no legal authority to support that
an entity’s control over an individual’s employment-based health insurance renders it the
individual’s employer where all nine factors identified in Butler weigh against finding joint
employment.
Even taking all evidence in the light most favorable to Plaintiffs, they have failed to
create a genuine issue of material fact as to whether NCSHP is Plaintiff Caraway’s employer.
Accordingly, NCSHP will be granted summary judgment on Caraway’s Title VII claim, and
Caraway’s motion for summary judgment will be denied as to this claim.
iii. DPS is liable under Title VII for providing the Plan to Caraway

DPS argues that it is entitled to summary judgment because (1) Caraway does not have
standing to sue DPS and (2) Caraway cannot show that DPS caused her injuries under Title
VII. (ECF No. 133.)
1. Caraway has standing to sue DPS
DPS first argues that Caraway’s injuries are not fairly traceable to its conduct as required
for standing because, pursuant to state law, DPS has no power to establish or implement the
Plan. (ECF No. 133 at 8–22.)

Parties invoking federal jurisdiction bear the burden of establishing that they have “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Traceability
requires a causal connection between the defendant’s conduct and the plaintiff’s injury, such
that “there is a genuine nexus” between the two. See Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000). “[T]he ‘fairly traceable standard is not
equivalent to a requirement of tort causation.’” Hutton v. Nat’l Bd. of Exam’rs in Optometry, Inc.,
892 F.3d 613, 623 (4th Cir. 2018) (quoting Friends, 204 F.3d at 161). At the summary judgment
stage, “the plaintiff can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit
or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will

be taken to be true.” Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)).
On March 10, 2020, this Court found that Plaintiffs had standing at the motion to
dismiss stage to sue University Defendants notwithstanding standing arguments similar to
those raised by DPS here. (ECF No. 45 at 7–10.) Although University Defendants could not

dictate the Plan’s terms, benefits, or exclusions under North Carolina law, this Court held that
Plaintiffs’ allegations that University Defendants hired Plaintiffs, offered the Plan to them, and
participate in its availability provided a sufficient nexus between the alleged injuries and
University Defendants to establish standing. (Id. at 8.) This traceability was “further
bolstered” by allegations that University Defendants funded the Plan in part and played an
active role in collecting erroneous payments and settling claims regarding health benefits. (Id.

at 8–9.)
Here, Plaintiffs have submitted evidence that DPS is similarly involved in providing
and administering the Plan. First, it appears undisputed that DPS “provides health care
coverage to its employees through the NCSHP.” (ECF Nos. 75 ¶ 18; 96 ¶ 18; 184 at 205:20-
22; see also ECF No. 133 at 14 (arguing that DPS was “require[d] . . . to offer the [Plan] to [its]
current and former employees.” (citing § 135-48.42(a)).) Defendants agree that DPS “play[s]

a role in getting eligible employees enrolled in the Plan” by providing employees with
electronic registration forms and making available a Health Benefit Representative to help the
employee enroll. (ECF No. 184 at 178:9–179:18 (NCSHP dep.), 220:7–221:16 (DPS dep.).)
DPS then reviews an applicant’s eligibility to confirm that she is either a new hire or has
become a full-time employee. (Id. at 179:1-5.) A DPS employee can make changes to her
health insurance benefits by filing a qualifying life event, which DPS must review and approve.

(Id. at 211:15–212:22.) DPS additionally contributes $521.96 per month per employee to help
cover the cost of the Plan. (Id. at 54, 205:25–206:3, 207:6-10.) Plaintiff Caraway was made
eligible for the Plan by virtue of her employment with DPS. (Id. at 177:10-19.) And Plaintiff
was required by DPS to have health insurance and received coverage under the Plan as part

of her compensation. (ECF Nos. 179-9 ¶ 16; 187-1 at 5–6.)
DPS argues that it “did not make the decision to exclude gender-confirming healthcare
coverage” from the Plan nor has “any authority to choose a healthcare coverage option for its
employees other than what was offered through the Plan.” (ECF No. 133 at 17–18.) It
describes the contacts with the Plan outlined above as “ministerial duties,” the majority of
which “are strictly dictated by statute.” (Id. at 18.) As Plaintiffs correctly contend, however,

there is no “ministerial” exception to the standing doctrine. (ECF No. 187 at 12 (citing Nelson
v. Warner, 12 F.4th 376, 385 (4th Cir. 2021)).) In Nelson, the Fourth Circuit held that candidates
who were placed second on election ballots based on party affiliation pursuant to West
Virginia law suffered an injury that was fairly traceable to the conduct of state election officials
who prepared the ballots in accordance with the statute. Nelson, 12 F.4th at 385; see also
Strickland v. Alexander, 772 F.3d 876, 886 (11th Cir. 2014) (“[T]he fact that ‘[defendant’s] duties

are ministerial in nature’ [does not] somehow render [plaintiff’s] injury not fairly traceable to
[defendant].”). Similarly here, DPS administers the Plan by providing it to its employees as
part of their compensation, enrolling employees in the Plan, confirming their eligibility,
approving qualifying life events, and partially funding the Plan. Thus, Plaintiff’s injuries are
fairly traceable to DPS’s conduct, notwithstanding its contention that its role in administering
the Plan is merely ministerial.
Additionally, the Court finds that Caraway has submitted sufficient evidence to
demonstrate injury and redressability at the summary judgment stage. As this Court previously
found with regard to Plaintiffs’ Title IX claims, a favorable ruling on Caraway’s Title VII claim

could redress Caraway’s injury through monetary or declaratory relief. (See ECF No. 45 at 9–
10.) Thus, Caraway has sufficiently established standing to sue DPS.
2. Caraway was denied coverage because of her sex
To prevail under Title VII, a plaintiff must typically show that “the defendant’s conduct
did in fact cause the plaintiff’s injury,” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346
(2013), meaning plaintiff’s injury “would not have happened ‘but for’ the purported cause,”

Bostock, 140 S. Ct. at 1739. But see id. at 1740 (noting that “liability can sometimes follow even
if sex wasn’t a but-for cause of the employer’s challenged decision” under the “motivating
factor test”). The but-for test directs courts “to change one thing at a time and see if the
outcome changes.” Id. at 1739. But-for causation “can be a sweeping standard” because
“[o]ften, events have multiple but-for causes.” Id. “[A] defendant cannot avoid liability just
by citing some other factor that contributed to its challenged employment decision.” Id.

Discrimination against a transgender employee violates Title VII. Id. at 1741. The
Supreme Court reasoned that an employer who “fires a transgender employee who was
identified as a male at birth but now identifies as a female” but “retains an otherwise identical
employee who was identified as female at birth . . . intentionally penalizes a person identified
as male at birth for traits or actions that it tolerates in an employee identified as female at
birth” in violation of Title VII. Id. Like with discrimination based on sexual orientation, “the
individual employee’s sex plays an unmistakable and impermissible role in the discharge
decision.” Id. at 1741–42.
Here, a straightforward application of the but-for test supports that Caraway’s birth-

assigned sex was a but-for cause of her injury. Caraway received hormone treatments and
surgery that aligned her physiology more closely with that of a stereotypical woman. Because
Caraway was identified as a male at birth, the Plan and its administrators considered these
treatments to be “leading to or in connection with sex changes or modifications and related
care.” (ECF No. 179-9 at 13.) If she was not assigned the sex of male of birth, then the
treatments would not “change” or “modify” her sex, and they would not fall within the

exclusion. Defendants have not submitted any admissible evidence to refute that these
treatments were “medically necessary,” and it appears both NCSHP and Blue Cross agree that
they would have been covered in absence of the exclusion. (ECF Nos. 137-2 at 58:4-23, 72:4-
6 (Jones dep.); 185-2 at 89–99; see also ECF No. 179-9 at 13 (citing only the exclusion as the
reason Caraway’s surgery was not covered).) Since the Plan covers some hormone treatments,
(see ECF No. 197-9), and may cover breast augmentation, vaginal repair, or vaginal

construction surgery that is not to treat “transsexualism” or “personal history of sex
reassignment,” (ECF No. 137-4 ¶ 21), it appears that Caraway would be able to receive the
same or similar surgery if she had been identified as female at birth.
DPS does not dispute this straightforward application of the but-for test. Instead, it
argues (similar to its standing argument above) that it did not “establish [or] implement” the
Plan, and therefore its actions are not a but-for cause of Caraway’s injury. (ECF No. 133 at

11.) But as discussed above, it is undisputed that DPS “provided” Plaintiff Caraway with
health insurance under the Plan as part of her compensation and performed various tasks to
help implement the Plan. The fact that DPS did not create the Plan or decide what it covered
is not dispositive. Put simply, if DPS had not provided Caraway with discriminatory health

insurance, she would not have been injured. DPS’s conduct is therefore a but-for cause of her
injury.
DPS counters: but we had no choice! State law required DPS to provide Plaintiff with
insurance under the Plan and forbade it from providing other or supplemental health
insurance. But compliance with state law is no defense to a federal violation. U.S. Const. art.
VI cl. 2; Arizona v. United States, 567 U.S. 387, 399 (2012) (“[S]tate laws are pre-empted . . .

where compliance with both federal and state regulations is a physical impossibility.”) (internal
quotations omitted); see, e.g., Green v. Sch. Bd. of New Kent Cty., 391 U.S. 430, 432–33, 435 (1968)
(prohibiting school boards from complying with state laws that mandated racial segregation in
public schools in conflict with the Fourteenth Amendment). Moreover, the statutes creating
the Plan expressly contemplated such a conflict and instructed DPS to eschew state law for
federal law. See N.C. Gen. Stat. §§ 135-48.4 (“If any provision of this Article is in conflict with

applicable federal law, federal law shall control to the extent of the conflict.”), 135-48.42(a)
(“Except as otherwise required by applicable federal law, new employees must be given the opportunity
to enroll. . . .” (emphasis added)).
Thus, Caraway will be granted summary judgment on her Title VII claim against DPS,
and DPS’s motion for summary judgment will be denied as to this claim. The remaining issue
of damages will be reserved for trial.
C. ACA
Lastly, NCSHP moves for summary judgment on Plaintiffs’ claims arising under the
ACA. (ECF No. 136.) Plaintiffs move for partial summary

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653651. Public record. Not legal advice.