BISMARCK, N.D. (NewsDakota.com) – A North Dakota law banning gender-affirming care for children will remain enforced pending a court challenge, while children whose treatments began before the law took effect in April 2023 can continue their care, according to a judge’s ruling released Wednesday.
Judge Jackson Lofgren denied a preliminary injunction sought by families challenging the law, reaffirming a previous decision from November when the plaintiffs sought a temporary restraining order.
The plaintiffs argued that a grandfather clause in the law is so vague it led providers to stop treatments in the state. However, the judge clarified that minors can continue any medical care they had before the law took effect.
Judge Lofgren stated it is unclear whether the plaintiffs are “substantially” likely to win their case, which is now scheduled for a November trial. The plaintiffs claim the law violates rights to parent or to personal autonomy and self-determination. He also dismissed claims that the grandfather clause is unconstitutionally vague and that the plaintiffs have demonstrated irreparable harm. Lofgren emphasized that maintaining the status quo, with the law in effect for over a year, serves the public interest.
The law, enacted immediately when Republican Gov. Doug Burgum signed it in April 2023 after overwhelming GOP-controlled legislature approval, criminalizes health care providers prescribing hormone treatments or puberty blockers to transgender children, with misdemeanors for these actions and felonies for performing gender-affirming surgeries on minors.
“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,” stated Brittany Stewart, Senior Staff Attorney at Gender Justice, representing the families and a doctor challenging the ban.
Republican state Rep. Bill Tveit, who introduced the bill, expressed satisfaction with the ruling, asserting the law protects children from irreversible procedures.
Opponents argue the ban will harm transgender children, who face higher risks of depression, self-harm, and suicide, noting no such surgeries are performed in the state. Despite the exception for ongoing treatments, providers have found the grandfather clause too vague, forcing plaintiff families to seek care out of state.
Judge Lofgren disagreed, writing that such children “can receive any gender-affirming care they could have received in North Dakota prior to the Health Care Law’s enactment.”
Gender Justice acknowledged the clarification could allow providers to resume care for these patients in North Dakota, but noted “significant barriers to access will remain for most or all children and families seeking care in North Dakota, as doctors who stopped providing care to transgender youth may hesitate to resume care due to concerns over the serious legal threats posed by the law.”
Twenty-five states have enacted bans on gender-affirming care for minors in recent years, nearly all challenged in court. Arkansas is appealing after a court struck down its ban. Courts blocked the law’s enforcement in Montana. The ACLU has asked the U.S. Supreme Court to review bans in Kentucky and Tennessee, while the high court has allowed Idaho’s law to remain effective during ongoing lawsuits.