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North Dakota seeks dismissal of lawsuit over health care for transgender youth

By Mary Steurer/North Dakota Monitor Nov 25, 2024 | 2:09 PM

(Mary Steurer – North Dakota Monitor) – An attorney representing North Dakota in a lawsuit challenging its ban on gender-affirming medical care for minors asked a state judge on Monday to throw out the case.

Special Assistant Attorney General Joseph Quinn presented two main arguments: that the plaintiffs don’t have the right to bring the lawsuit, and that the state has presented enough evidence for the judge to rule in its favor without requiring a trial.

The law, signed by Gov. Doug Burgum in April 2023, makes it a crime for medical professionals to provide gender-affirming treatment to anyone under the age of 18. It contains an exemption for adolescents who had been receiving treatment before it took effect.

Three families with transgender children and a pediatric endocrinologist filed suit over the ban in September 2023. They allege the ban violates their parental freedoms and medical autonomy, and that it discriminates against children with gender dysphoria because it prevents them from accessing treatments available to kids with other medical conditions. The plaintiffs also claim that the law is unconstitutionally vague and puts medical providers at risk for prosecution because it does not sufficiently explain when its exemptions apply.

In his June order on a motion to temporarily halt enforcement of the law, South Central Judicial District Judge Jackson Lofgren concluded the ban is not unconstitutionally vague and that patients who were being treated before the law went into effect can receive “any medical care for the treatment of gender dysphoria.”

Quinn argued Monday that the three plaintiff families don’t have standing to bring the lawsuit because their kids were all receiving treatment before the ban, and therefore qualify for the exemption and aren’t affected by the law. Quinn also said that because Lofgren’s order clarified how to apply the law, the endocrinologist plaintiff, Dr. Luis Casas, also does not have standing to sue.

Brittany Stewart — an attorney for Gender Justice, one of the groups representing the plaintiffs — said that in spite of Lofgren’s order, none of the children of the plaintiff families have been able to access gender-affirming care in North Dakota since the ban took effect in April 2023. Minors with gender dysphoria, even those who were receiving treatment prior to the ban, must go out of state to receive medical treatment or do without it altogether, she said.

“We’re here today because the plaintiffs in this case have suffered and continue to suffer actual injury,” she said.

Stewart added that Casas is not only representing himself in the case, but also the interests of his current and future patients — including minors who may have a gender dysphoria diagnosis but have never been able to access gender-affirming care because of the ban.

Quinn argued that the safety and effectiveness of gender-affirming medical treatments like puberty blockers and hormone therapy is disputed and that North Dakota has “wide discretion to legislative areas of medical and scientific uncertainty” and that the law is necessary to protect kids.

Parental freedoms are never absolute, he added, and the state can step in on behalf of parents when it’s in the best interest of the public.

Quinn also argued the law does not discriminate against transgender children because the state of North Dakota does not recognize being transgender as a protected status.

The plaintiffs have maintained throughout the lawsuit that every major medical association in America accepts gender-affirming care as safe and the standard treatment for gender.

Tanya Pellegrini, another attorney representing the plaintiffs, said the lawsuit should be allowed to go to trial because of the “extensive, disputed and technically complex” evidence involved in the case — which includes testimony from numerous expert witnesses.

Quinn said that the fact that the plaintiffs and state have conflicting evidence should not be taken as a reason to let the case go to trial, but as proof that the efficacy and safety of gender-affirming care is not settled science — and therefore reason Lofgren should rule in favor of the state.

Pellegrini also said there’s evidence some North Dakota lawmakers approved the ban at least in part because of personal bigotry toward LGBTQ people, pointing to testimony made by legislatures during hearings on the bill and statements by lawmakers deposed for the lawsuit.

“Lawmakers openly discussed wanting to drive LGBTQ people and their supporters from their own homes in North Dakota, and that is exactly what the law accomplishes,” she said.

If bigotry was the motivation for passing the law, she reasoned, the state does not have an interest in defending it. If the state disputes this claim, the parties should at least be allowed to hash out their arguments at trial, she said.

Quinn said the plaintiffs only have evidence that a few lawmakers have expressed anti-transgender views, and that there’s no proof the majority of state lawmakers who voted in favor of the law felt similarly.

Lofgren said he will take the motions under advisement.

The lawsuit is scheduled to go to trial in January.

North Dakota’s ban on gender-affirming care passed North Dakota’s Republican-dominated Legislature with more than two-thirds approval in each chamber.

The law makes it a class A misdemeanor to administer gender-affirming treatments like puberty blockers or hormone therapy to a minor. Anyone found guilty of doing so could face up to 360 days in jail, fines of up to $3,000 or both. Medical professionals also fear a violation of the ban could jeopardize their medical licenses, according to records filed in court.

The law also makes it a class B felony to perform transition-related surgery on a minor. Anyone convicted of doing so could face up to 10 years in prison, a maximum $20,000 fine or both.  Experts have testified in the case that medical professionals do not perform such surgeries on minors in North Dakota.

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