BISMARCK, N.D. — A North Dakota law banning gender-affirming care for children will remain in place pending a lawsuit, but all children whose treatments began before the law took effect in April 2023 can continue to receive the care, according to a judge’s ruling was released on Wednesday.
Judge Jackson Lofgren denied a preliminary injunction looking for families to destroy the law, as he had done done before in November when the plaintiffs sought a temporary restraining order.
Prosecutors said a grandfather clause in the law is so vague that it has led providers to halt treatments in the state, but the judge made clear that minors can continue any medical care they had before the law took effect.
It is not clear that plaintiffs are “substantially” likely to win the case, now scheduled for trial in November, on claims that the law violates the right to parenthood or to personal autonomy and self-determination, the judge said.
He also pushed back against claims that the grandfather clause is unconstitutionally vague and that plaintiffs have suffered irreparable harm. With the current law now in place for over a year, Lofgren said that “the public interest in maintaining the status quo outweighs granting a preliminary injunction.”
The law took effect immediately when Republican Gov. Doug Burgum signed it in April 2023 after overwhelming approval by the Republican Party-controlled Legislature. It makes it a crime for a health care provider to prescribe or give hormone treatments or puberty blockers to a transgender child, and a crime to perform gender confirmation surgery on a minor.
“The longer this law is allowed to remain in effect, the more North Dakota children and families will be harmed by the state’s unfair, unjust, and unconstitutional denial of the essential and lifesaving health care they need,” said Gender Justice Senior Staff Attorney . Brittany Stewart, who represents the families, and a doctor who is challenging the ban.
Republican state Rep. Bill Tveit, who introduced the bill, was pleased with the ruling. He said the law protects children from irreversible procedures.
Opponents said the ban will harm transgender children who are at greater risk of depression, self-harm and suicide, and stressed that no one performs such surgeries in the state.
Despite the exception for children who received treatments before the ban went into effect, providers have been considering it the grandfather clause is too vague to risk itso the plaintiffs’ families had to leave the state to get gender-affirming care for their children, Gender Justice said.
The judge disagreed, writing that such children “can receive any gender-affirming care they could have received in North Dakota before the enactment of the health care law.”
Gender Justice agreed that the clarification “clears the way for providers to resume caring 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 physicians who have stopped providing care to transgender youth may be hesitant to resume care due to concerns about the serious legal threats that the law brings.” said the organization’s statement.
Twenty-five states have passed bans on gender-affirming care for minors in recent years, and almost all of them have been challenged in court. Arkansas is appealing after a court struck down the ban entirely. Courts blocked enforcement of the law in Montana. And the ACLU has asked the U.S. Supreme Court to rule on whether the bans should remain in effect Kentucky and Tennessee. The Supreme Court has Idaho law remain in effect as long as the lawsuits continue.
___
AP writer Geoff Mulvihill contributed to this report from Cherry Hill, New Jersey.
For more AP coverage of LGBTQ+ issues: https://apnews.com/hub/lgbtq-legislation