HB 2 plaintiffs fight to keep medical records out of court HB2 lawsuit plaintiffs want to limit discovery of medical, mental health records They say state officials are trying to intimidate them

The plaintiffs in a lawsuit targeting House Bill 2 are requesting a protective order to prevent the introduction of certain medical and behavioral health records being sought by the defendants, including Gov. Pat McCrory.

The plaintiffs say the attempt to access up to 10 years' worth of their records constitutes "harassment" and an attempt to intimidate them and potential witnesses.

The plaintiffs, in a separate motion, ask to be allowed to join a U.S. Justice Department lawsuit against McCrory and three state entities in a non-party witness role.

A lawsuit over the restroom aspect of HB 2 was filed March 28 in U.S. District Court for the Middle District of North Carolina.

HB 2 requires individuals, including those who are transgender, to use public restrooms and locker rooms based on the gender listed on their birth certificates rather than gender identity.

Two of the plaintiffs, Joaquin Carcaño, a transgender UNC Chapel Hill employee, and Peyton Grey McGarry, a transgender UNC Greensboro student, were born female but identify as male. Angela Gilmore is a lesbian and an associate dean and professor at the N.C. Central University law school.

Senate leader Phil Berger and House Speaker Tim Moore have become defendants after taking an intervenor role.

Judge Joi Elizabeth Peake postponed from Oct. 28 to Nov. 18 a status conference that will address the medical and mental health records request. Peake also will address the defendants' request for legislative-privilege on certain HB 2-related communications and public records.

The plaintiffs said in a motion filed Tuesday that three plaintiffs or potential witnesses received a subpoena Sept. 30 to release 10 years' worth of medical and mental health records.

The plaintiffs' attorneys say the defendants' subpoena is "overbroad and compliance would be oppressive and burdensome." They said the records are protected by therapist-patient privilege, which has not been waived.

Although the defendants agreed Oct. 6 to produce some medical and mental health records during the discovery process, the "defendants have not agreed to limit their requests for production" of the records, "or their questioning of the individual transgender plaintiffs in depositions in any way."

The plaintiffs and defendants have said they plan to introduce at trial what they consider as expert testimony "regarding the diagnosis of gender dysphoria in general and its typical appropriate treatment."

Gender dysphoria is the medical diagnosis for the incongruence between a person's gender identity and birth-assigned sex and accompanying clinically significant distress.

Some proponents of HB 2, most notably Lt. Gov. Dan Forest, have cited controversial scientific studies that claim someone describing themselves as transgender is likely experiencing a mental disorder in which their gender identify could fluctuate from how they feel any given day.

"The vast array of medical and mental health records and testimony (that) defendants seek is so far afield from any of the issues in the case, and sweeps in information so sensitive, that defendants' persistent requests constitutes harassment," according to the plaintiffs' motion.

"It has the effect of not only punishing the individual plaintiffs and other transgender fact witnesses for seeking to vindicate their rights under federal law, but also potentially intimidating them from doing so, including testifying at trial."

On Oct. 11, the defendants requested that they not be required to provide a privilege log related to HB 2 documents and communications.

On Tuesday, the governor's office released a series of email communications, about a week after being sued for the release of the public records by several media outlets.

A privilege log is defined as the record of documents that are being withheld from production on a claim that they either contain attorney-client communication or are an attorney work product.

The defendants say excluded documents should include statements or communications made during legislative sessions or in the course of their legislative duties. The defendants also are requesting that plaintiffs not be allowed to take depositions from them or members of their staff.

In a motion filed Wednesday, the defendants claim that the plaintiffs "show a basic misunderstanding of legislative privilege" and that they "are mistaken" when they say Berger and Moore waived their rights to the privilege by becoming intervenors in the lawsuit.

The motion also said that "requiring a privilege log would invade legislative privilege and would be disproportionately burdensome."

Left-leaning advocates say McCrory's request for legislative privilege suggests he had a bigger role in putting HB 2 together than just signing it into law on March 23 - the same day the bill was passed by the Republican-controlled General Assembly.

Whether some or all of those documents and communications are public records remains a gray legal area, according to public-records experts.

rcraver@wsjournal.com (336) 727-7376 @rcraverWSJ