Judge won't block North Dakota's ban on trans care for minors

A judge in North Dakota has refused to block the state’s law criminalizing gender-affirming care for transgender minors from being enforced.

In an order issued Wednesday, South Central Judicial District Judge Jackson Lofgren declined to issue a preliminary injunction blocking the ban while a lawsuit against it is heard, the North Dakota Monitor reports. While those challenging the ban may succeed in their suit, the prospect that they will isn’t clear enough to meet the standard for an injunction, he wrote. Minors who were receiving treatment when the ban went into effect in April 2023 can continue to undergo it.

North Dakota legislators had passed the ban with veto-proof majorities, and Republican Gov. Doug Burgum signed it into law. The measure makes it a felony to perform gender-affirming surgeries on minors for the purpose of transition and a misdemeanor to prescribe hormones or puberty blockers. The penalty for the felony charge would be a prison term of up to 10 years in prison and a $20,000 fine; for the misdemeanor, it would be up to 360 days in prison and a $3,000 fine. However, doctors have testified that genital surgeries are not performed on minors in North Dakota, and indeed, they are not recommended for minors in general.

Three North Dakota families and a pediatric endocrinologist filed suit in September, “arguing that the law infringes on their personal autonomy and freedom to parent, is discriminatory toward transgender children and prevents them from accessing necessary medical treatment, and puts health care providers at risk of prosecution for good-faith medical decisions,” according to the Monitor. They also say it violates the equal protection clause of the state’s constitution.

Lofgren, however, said that trans people are not a protected class under the constitution and he wasn’t convinced there was a medical consensus on the benefits of gender-affirming care. “As previously noted, while there are documented psychological benefits to gender affirming care, there are also potential risks,” he wrote. “There is also disagreement regarding the soundness of the research and data available and the potential for unforeseen consequences.”

But major medical groups, including the American Academy of Pediatrics, the American Psychiatric Association, and American Medical Association, endorse gender-affirming care for trans minors. Gender Justice, one of the groups representing the plaintiffs, pointed this out in a statement.

Gender Justice welcomed the clarification that gender-affirming treatment can continue for minors who were receiving it when the law went into effect but denounced the judge’s failure to block the law.

“The bottom line is that the longer this law is allowed to remain in effect, the more North Dakota kids and families will be harmed by the state’s unfair, unjust, and unconstitutional denial of the essential and life-saving health care they need,” said Brittany Stewart of Gender Justice, lead attorney for the families and doctor, said in a press release.

“We are obviously disappointed in this ruling. We remain committed to showing the court that the health care ban violates the fundamental rights of these families and their doctor, and we believe after a full trial presenting all of the issues and evidence that the court will ultimately agree that this law must be overturned.” The Lawyering Project and Ciresi Conlin LLP are also representing the plaintiffs.

The lawsuit is scheduled to go to trial in November.

In March, a federal court in North Dakota ruled 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. It came in a lawsuit filed in 2021 by Christian Employers Alliance against the U.S. Equal Employment Opportunity Commission and the U.S. Department of Health and Human Services.

At the state level, North Dakota legislators have passed and Burgum has 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.

Burgum briefly sought the 2024 Republican presidential nomination and has been mentioned as a possible running mate for Donald Trump.