North Dakota judge allows enforcement of health care ban for most transgender youth as lawsuit continues

FOR IMMEDIATE RELEASE
June 6, 2024

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Court allows resumption of care for those receiving treatment prior to ban, but chilling effect of law still likely to block or impede access

Bismarck, ND—

A state district court judge yesterday denied a request from North Dakota children and families to issue a preliminary injunction blocking enforcement of North Dakota’s ban on essential health care for transgender and nonbinary youth — leaving in place a law that denies them widely used, evidence-based, life-saving health care supported by every major medical association and remains available to all other North Dakota youth who are not transgender or nonbinary.

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. 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.

A lawsuit challenging the law’s constitutionality was filed by the three families and their North Dakota pediatrician on September 14, 2023. The case is set for trial beginning November 18, 2024 to determine whether the law should be permanently enjoined.

“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.

“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 families and doctor named as plaintiffs say the health care ban violates the North Dakota Constitution by singling out transgender children for unequal treatment under the law, and represents an unacceptable governmental intrusion into families’ private lives and personal decisions.

Represented by Gender Justice, the Lawyering Project, and Ciresi Conlin LLP, the three North Dakota families describe in the lawsuit how their lives and health care have been significantly disrupted by the law. Passed by the North Dakota legislature and signed by Gov. Doug Burgum in April 2023, the law makes it a misdemeanor — with a sentence of up to 360 days in jail and $3,000 in fines — for doctors to provide essential health care such as hormone therapy and puberty blockers to transgender or nonbinary children. It remains legal for doctors to prescribe these medications to children who are not transgender.

The court’s ruling may provide some relief to families with minors who began treatment prior to the enactment of the health care ban. The families in this case, two of whom wish to remain anonymous due to privacy and safety concerns, have children who were already undergoing medical treatment for gender dysphoria when the health care ban took effect. Since the passage of the health care ban, all of the families in this case have been forced to travel out of state to receive their care, with some traveling as many as seven hours roundtrip.

However, in yesterday’s ruling, the court clarified that providers are permitted to treat minors in North Dakota who had already been receiving gender-affirming medical care prior to April 21, 2023. This 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 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. The ruling does not provide relief for transgender youth who had not received care before the health care ban’s enactment date.

In personal declarations filed alongside the lawsuit, the families describe the emotional, psychological, and financial toll the health care ban has already taken: school and work days missed due to the extensive travel now required to get care, severe anxieties about the prospect of losing access to the health care that has dramatically improved their lives, and concerns that they might need to uproot their lives and leave North Dakota entirely.

Every major medical organization, including the American Academy of Pediatrics, the American Medical Association, and the American Psychiatric Association, supports the provision of age-appropriate, gender-affirming care for transgender and nonbinary people.

Recent research published by the American Medical Association showed that when transgender and nonbinary kids received the very same care that’s been banned for them in North Dakota, their odds of depression decreased by 60 percent, and their odds of self-harm and suicide decreased by 73 percent.

The lawsuit notes that the treatments banned by the North Dakota law remain available to all other young people in North Dakota who do not identify as transgender or nonbinary — including care for boys who develop unwanted breast tissue, girls who wish to reduce overdeveloped breasts, and all children who start puberty too early.

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Gender Justice is a legal and policy advocacy organization dedicated to advancing gender equity through the law. Our vision is for a world where people of all genders, gender identities and expressions, and sexual orientations have the opportunity to thrive. We work towards our vision through impact litigation, advocacy, movement building, and public education.

The Lawyering Project uses the law to improve abortion access and uphold the rights and dignity of people seeking and providing abortion care. Our goal is a legal system that enables each of us to make decisions about intensely personal matters like sex, pregnancy, family, and health care based on our own beliefs and values—and ensures that we all have the resources we need to carry those decisions out.

Ciresi Conlin LLP is a law firm located in Minneapolis, Minnesota, that cares about our clients and our communities and chooses cases that impact both.


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