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A North Dakota court has permitted doctors to refuse to perform gender-affirming surgeries, and allowed employers to refuse to cover all gender-affirming care.
A North Dakota federal court has handed down two mandates that will impede access to gender-affirming care in the state for transgender adults.
The rulings, released Monday, determined that doctors do not have to perform gender-affirming surgeries if they have a religious objection, while simultaneously ruling that employers can refuse to provide insurance coverage for all gender-affirming care on the same grounds.
The decision settles a lawsuit brought in 2021 by Christian Employers Alliance (CEA) against the the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Health and Human Services (HHS), challenging policies that would require employee health plans to provide coverage for such treatment.
CEA argued that Christianity upholds the idea that "male and female are immutable realities defined by biological sex" and there "gender reassignment is contrary to Christian Values." District Judge Daniel Traynor therefore ruled that requiring the businesses to cover gender-affirming care, or requiring a doctor to perform such surgery "substantially burdens a sincere religious exercise or belief."
The EEOC and HHS have policies that prohibit health insurance plans from engaging in sex-based discrimination under the Affordable Care Act. Discrimination based on sexual orientation or gender identity is considered unlawful sex discrimination, according to the U.S. Supreme Court's 2020 ruling in Bostock v. Clayton County.
CEA was represented by the Alliance Defending Freedom, an anti-LGBTQ+ legal nonprofit that also represented website designer Lorie Smith in 2023 and baker Jack Phillips in 2018. Both won their respective cases at the high court, which affirmed their right to discriminate against LGBTQ+ people on the basis of religious freedom.
North Dakota criminalized gender-affirming care for minors in 2023, making it a felony to perform gender-affirming surgery on a minor for the purpose of transition (which wasn’t happening anyway) and a misdemeanor to prescribe puberty blockers or cross-sex hormones.
Gov. Doug Burgum also signed several other anti-LGBTQ+ bills, including (among others) one that restricts trans people’s restroom use in some venues; two barring trans girls and women from competing on female sports teams, one affecting K-12 public schools, the other state colleges and universities; a “religious refusals” bill; and one banning gender changes on birth certificates.
