A North Dakota district judge said Tuesday he'll decide soon on whether to temporarily block the state's ban on gender-affirming care for children, among the latest in a series of similar lawsuits playing out across the U.S.
Three families and a pediatrician are the plaintiffs in the lawsuit filed in September. They want a temporary restraining order and a preliminary injunction, ultimately permanent, to block enforcement of the law.
They say the ban violates the state constitution, including the equal protection clause and fundamental rights to parent one's children, rights to “personal autonomy and self-determination" and due process, and that it is “unconstitutionally vague.”
“All of these families have been left to consider whether they may have to leave their home state of North Dakota just to make sure their kids can keep accessing this health care that has so positively impacted their lives and families,” said the plaintiffs' lead attorney, Brittany Stewart.
Judge Jackson Lofgren said he will decide whether to issue a temporary restraining order “within a reasonable period of time.” A hearing on the plaintiffs' preliminary injunction request is set for January.
North Dakota's Republican-controlled Legislature overwhelmingly passed the law, which Republican Gov. Doug Burgum signed into effect in April.
Families have had to travel out of state for gender-affirming care for their children — as long as an eight-hour round trip for a 15-minute appointment, missing work and school, with the coming winter potentially preventing such travel, Stewart said.
“We're here today because the state of North Dakota, with the stroke of a pen, ripped away life-changing and even life-saving health care from transgender youth and their parents overnight,” Stewart said. “Evidence-based, best-practice health care that had previously been available to transgender youth in North Dakota for years was suddenly unavailable with little or no time to prepare.”
That nearly five months passed before the lawsuit was filed after the measure became law “implies a lack of urgency and a lack of irreparable harm,” Special Assistant Attorney General Joe Quinn said.
The state “plainly has the authority, in fact, the responsibility to look after the health and safety of minor children,” he said. “This is an area of unfolding medical and policy debate, specifically the safety of gender transition medical care for minors."
Under North Dakota’s law, health care providers can be charged with a felony for performing gender affirmation surgeries on minors, punishable by up to 10 years’ imprisonment and/or a $20,000 fine.
They also risk being charged with a misdemeanor if they prescribe or give hormone treatments or puberty blockers to minors, with a maximum penalty of 360 days in jail and/or a $3,000 fine.
Supporters said the ban protects children against treatments and operations they said are irreversible.
Opponents said such surgeries are not performed on minors in North Dakota, and that the ban on gender-affirming care would harm transgender youth, who are at increased risk for depression, suicide and self-harm.
The law exempts minors who were already receiving gender-affirming care, and allows for the treatment of “a minor born with a medically verifiable genetic disorder of sex development."
Perceived ambiguity over the “vague” grandfather clause has led doctors to stop providing the care, Stewart said. Quinn said North Dakota doctors aren't providing treatment because they don't understand the law, and that the plaintiffs' argument “ignores the plain language” of it.
At least 22 states have adopted bans on some or all gender-affirming care for minors since 2021. Some of the measures are so new that they haven’t yet taken effect.
Most of them are facing court challenges. So far, lower courts have blocked enforcement in Alabama, Arkansas, Georgia, Indiana, Kentucky, Montana and Tennessee, but federal appeals judges have allowed enforcement to move ahead in Alabama, Kentucky and Tennessee.
Meanwhile, at least 13 Democrat-controlled states have new laws or executive orders seeking to protect access to gender-affirming care for minors.
