Parents of transgender children challenge North Dakota health care ban

GRAND FORKS — A lawsuit in Burleigh County is challenging North Dakota’s ban on gender-affirming health care for transgender youth, which was signed into law as an emergency measure in April.

“Overnight, (the law) ripped away this lifesaving, evidence-based health care that transgender kids in North Dakota had been able to access for years before,” said Brittany Stewart, lead counsel for the plaintiffs. “It was done so based off of misinformation presented in the Legislature. There was no actual medical evidence presented to support this new law.”

As senior staff attorney at Gender Justice, a nonprofit that focuses on gender equity in North Dakota and Minnesota, Stewart is one of seven people representing the plaintiffs in the case.

Read more

• 18h ago

• McFeely: Defensive issues? What defensive issues for NDSU? 18h ago

The plaintiffs, Dr. Luis Casas, the Dolney family and two families using pseudonyms (the Does and Roes) approached Gender Justice this spring, around the time the law passed, in hopes that the nonprofit could help.

In September, a complaint was filed against North Dakota Attorney General Drew Wrigley, Cass County State’s Attorney Kimberlee Hegvik, Burleigh County State’s Attorney Julie Lawyer and Stark County State’s Attorney Amanda Engelstad.

The complaint asks the court to issue a declaratory judgment that the ban violates North Dakota’s Constitution and is therefore void and of no effect and, in the meantime, issue a temporary restraining order (TRO) and preliminary injunction denying enforcement of the ban. A preliminary injunction was recently passed against a similar ban in Montana, Stewart said.

The complaint alleges that North Dakota Century Code Chapter 12.1-36.1 stripped away transgender children and families’ rights to make personal medical decisions, such as whether to use puberty blockers and hormones, that non-transgender children and their families are still allowed to make.

“These medications are used for a wide range of diagnoses,” Stewart said. “Puberty blockers are used for anybody who starts puberty at too young of an age, and hormone treatments are used for all kinds of things.”

Cisgender boys, assigned male at birth, may take hormones if they experience gynecomastia, an overdevelopment of breast tissue.

“They would go on masculinizing hormones to help them feel better about their body, and have their body match their identity, just the same way a transgender boy would be using it,” Stewart said. “But the law only singles out the transgender boy.”

The use of gender-affirming care for cisgender children is a major point Stewart, her team of counsel and their clients brought forward in their written briefs, as well as oral arguments given in Burleigh County District Court on Tuesday, Nov. 7.

Temporary restraining order

During the hearing, they asked Judge Jackson Lofgren to issue a TRO. As of Thursday afternoon, Nov. 9, no ruling had been made on the request.

“We’ve asked to put the law on hold for everybody,” Stewart said. “That’s what we’re hoping for, because these families that were brave enough to come forward to be a part of this lawsuit aren’t the only families affected. They’re representative of other people out there, so we’re hoping that the judge will understand that.”

If the TRO is approved, it will be in effect until the preliminary injunction hearing, scheduled for Jan. 19. At that hearing, testimony will be given and an order will be made that then would be in effect until the matter goes to trial.

“The case I was making to the court is that every minute that this law is allowed to remain in effect, it is infringing on the fundamental rights of our plaintiffs,” Stewart said. “They have a right to keep accessing this care to prevent any irreparable harm that may come.”

Irreparable harm

The children involved in the lawsuit are two 12-year-old transgender boys and a 15-year-old transgender girl. Since April, their families have been commuting to Dr. Casas in Moorhead, Minnesota, where he works two days a month, to continue receiving puberty blockers and, in the girl’s case, estrogen.

Though the clients and their families haven’t missed any appointments yet, winter may make their commutes even more challenging. If the children on puberty blockers miss a dose, they would likely begin to experience puberty, Stewart said.

“One of the things people say is these medications might cause irreversible effects,” she said. “Well, puberty causes irreversible effects. Especially for transgender girls — if they go through a male puberty and start growing facial hair, that's not something that can be stopped with hormones.”

In adulthood, transgender women may undergo laser hair removal, electrolysis and similar procedures.

“(That’s) a whole bunch of extra money they'll have to spend on these procedures that could have been prevented by just being able to not even go through that incorrect puberty in the first place,” Stewart said.

Misconceptions

The law prohibiting gender-affirming care for transgender children was passed as a result of misinformation and misconceptions about what gender-affirming care means, according to Stewart.

“To our knowledge, there’s been absolutely zero surgeries on genitalia on anybody under 18 in North Dakota,” she said. “In fact, I don't even know if anybody performs that kind of surgery even on adults in North Dakota, because that's not something that's just performed everywhere.”

None of the three children listed as plaintiffs in the lawsuit are trying to access surgical intervention; they want to maintain access to puberty blockers and hormones.

Another misconception is that parents push these identities on their children, Stewart said.

The families involved in this lawsuit were not prepared for their child to be transgender, and it took them time to come to grips with it. However, once their children were given access to gender-affirming care, they transformed from distressed, depressed and anxious to comfortable, confident and living more freely, Stewart said.

“They're not trying to hurt anybody,” she said. “They don't want anything that anybody else doesn't have. They just want to be able to live freely and pursue happiness, as is guaranteed them under the North Dakota Constitution.”