North Dakota Judge Declines Petition to Block Law Barring Gender Transitioning for Minors

A North Dakota judge has declined a request to halt enforcement of the state’s ban on new gender-transitioning procedures for minors.

A group of plaintiffs is actively challenging a 2023 law that makes it a Class B felony for medical professionals to surgically remove or modify a minor’s sexual organs, perform mastectomies on a minor, or provide him or her with puberty blockers or cross-sex hormones to accommodate gender perceptions that are at variance with a child’s biology. The plaintiffs in the case, T.D. v Drew H. Wrigley, have sought a preliminary injunction pausing enforcement of this 2023 law until a court can reach a final determination on its legality.

Judge Jackson Lofgren ruled on June 5 that the plaintiffs had not met the burden of proof necessary to warrant a preliminary injunction and allowed North Dakota to proceed with enforcement of the law while the case continues to play out.

The plaintiffs in the case are three families with children who identify as transgender, and Dr. Luis Casas, a pediatric and adult endocrinologist licensed in the state of North Dakota. The plaintiffs are represented by the law offices of Ciresi Conlin LLP and legal advocacy groups The Lawyering Project and Gender Justice.

The plaintiffs named Republican North Dakota Attorney General Drew Wrigley and other state attorneys as defendants in their official capacity.

The complaint brought by the plaintiffs argues that the 2023 North Dakota law violates the transgender-identifying children’s rights to equal protection under the law and bodily autonomy, the parent’s rights to decide on medical procedures for their children, and Dr. Casas’s right to due process.

Throughout his ruling, Judge Lofgren wrote that plaintiffs did not have a substantial likelihood to succeed on any of these grounds.

The 2023 law does provide exceptions stating gender transitioning interventions on minors with ambiguous sex characteristics or other diagnosed genetic anomalies. Medical care providers can also continue to provide gender transitioning interventions on minors if they started such medical interventions before the 2023 law went into effect.

The complaint argues that the wording of these exceptions in the law is unconstitutionally vague.

“Because of this lack of clarity, a health care provider may be trapped for innocently authorizing new refills of previously prescribed medications,” the complaint states. “Some providers may choose not to continue care for fear that they will be trapped by this vague language, and thus find it more prudent to refuse new refills than to risk criminal prosecution.”

Judge Lofgren, by contrast, interpreted the North Dakota law as stating those who had received medical gender transitioning treatments prior to the 2023 law “can receive any medical care for the treatment of gender dysphoria that was available in North Dakota prior to enactment of the Health Care Law.” The judge ruled that the plaintiffs are unlikely to succeed on the claim that the 2023 law is overly vague.

Responding to Judge Lofgren’s ruling, Gender Justice spokesperson Noah Parrish said the law holds a “chilling effect” on families in the state.

“The court’s ruling does clarify that health care providers can offer gender-affirming medical care to adolescents who had been receiving care before the law’s enactment on April 21, 2023,” the Gender Justice spokesperson wrote in a June 6 press statement. “However, many physicians already moved their gender-affirming care practices out of state, so access to care is likely to remain significantly impeded or blocked for North Dakota transgender and nonbinary youth.”

“We are obviously disappointed in this ruling,” Gender Justice lead attorney Brittany Stewart added. “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.”

Other states have taken steps to ban or limit medical professionals from prescribing or performing medical gender transitioning on minors.

Twenty-five states have passed laws limiting gender-related procedures for minors, according to the Kaiser Family Foundation. Seventeen of those states face ongoing legal challenges to those laws.

The U.S. Supreme Court recently ruled that Idaho could proceed with enforcing its limits on gender transitioning for minors.

Republicans in the Wisconsin state legislature passed a bill to ban gender-transitioning surgeries, puberty blockers, and cross-sex hormones for minors, but Democratic Gov. Tony Evers vetoed it in December.

In April, Democratic Kansas Gov. Laura Kelly also vetoed a bill that would have limited gender-transitioning procedures for minors in her state. The Kansas State Senate had enough votes to override her veto, but House failed an override by two votes.