Judge won’t block North Dakota’s ban on gender-affirming care for children

BISMARCK, ND. A North Dakota law prohibiting gender-affirming care for children will continue to be enforced pending a court challenge, but any children whose treatments began before the law took effect in April 2023 can continue to receive the care, according to a judge’s ruling released Wednesday.

Judge Jackson Lofgren denied a preliminary injunction requested by families looking for to overturn the law, as he had done done previously in November, when the plaintiffs requested a temporary restraining order.

The plaintiffs said a previous provision of the law is so vague that it led providers to stop treatments in the state, but the judge made clear that minors can continue any medical care they received before the law took effect.

It is unclear whether the plaintiffs are “substantially” likely to win the case, now scheduled for trial in November, on allegations that the law violates rights to parents or to personal autonomy and self-determination, the judge said.

He also objected to claims that the foregoing clause is unconstitutionally vague and that the plaintiffs have demonstrated irreparable harm. With the current law in effect for more than a year, Lofgren said “the public interest in maintaining the status quo weighs against granting an injunction.”

The law took effect immediately when Republican Governor Doug Burgum signed in April 2023, after overwhelming approval by the GOP-controlled legislature. This makes it a misdemeanor for a healthcare professional to prescribe or administer hormone or puberty-blocking treatments to a transgender child, and a felony to perform gender-affirming surgery on a minor.

“The longer this law remains in effect, the more North Dakota children and families will be harmed by the state’s unjust, unfair and unconstitutional denial of the essential and life-saving health care they need,” Senior Gender Justice Attorney Brittany Stewart , who represents families and a doctor challenging the ban.

Republican State Rep. Bill Tveit, who introduced the bill, was pleased with the decision. He said the law protects children from irreversible procedures.

Opponents said the ban will harm transgender children who face greater risks of depression, self-harm and suicide, and emphasized that no one performs such surgeries in the state.

Despite the exception for children who were receiving treatment before the ban took effect, providers considered the grandfather clause is too vague to riskas a result of which the plaintiff families had to travel out of state to obtain gender-affirming care for their children, the Gender Court said.

The judge disagreed, writing that these children “may receive any gender-affirming care they could have received in North Dakota prior to the enactment of the Health Care Act.”

Gender Justice agreed that the clarification “paves the way for providers to resume care for these patients in North Dakota.”

“However, significant barriers to access will remain for most or all children and families seeking care in North Dakota, as clinicians who have stopped providing care to transgender youth may be hesitant to resume care due to concerns about serious legal threats posed by the law,” the organization’s statement said.

Twenty-five states have adopted bans on gender-affirming care for minors in recent years, almost all of which have been challenged in court. Arkansas is appealing after a court overturned its ban entirely. The courts blocked the application of the law in Montana. And the ACLU asked the U.S. Supreme Court to consider whether the bans should remain in effect in Kentucky and Tennessee. The high court allowed Idaho law will remain in effect while legal proceedings continue.

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AP writer Geoff Mulvihill contributed to this report from Cherry Hill, New Jersey.

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