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In an order filed Monday, Nov. 13, Burleigh County Judge Jackson Lofgren denied a motion for a temporary restraining order against the ban signed into law earlier this year. The law was approved through House Bill 1254, which prohibits sex-reassignment surgeries for children. The law also makes it a crime for medical professionals to prescribe hormone treatment or puberty blockers to transgender minors.
North Dakota Gov. Doug Burgum signed the bill in April, and it became effective immediately.
Three families and a pediatrician sued North Dakota on Sept. 15, saying the ban harms transgender children and violates their civil rights by depriving them the right to make personal medical decisions.
© Suhr & Lofgren Law FirmNorth Dakota Burleigh County Judge Jackson Lofgren
A temporary restraining order would not be appropriate in this case, Lofgren said in his opinion. Attorneys for the families and doctor argued the plaintiffs will continue to be injured the longer the law remains in effect.
Lofgren said that argument loses strength since the lawsuit wasn't filed until five months after the law was placed on the books. Temporary restraining orders are supposed to maintain a status quo, and in this case, that is enforcing the transgender health care ban, Lofgren wrote.
Issuing a restraining order on a law that someone alleges is unconstitutional is "one of the most extreme reliefs," Lofgren said. Plaintiffs must prove "beyond a reasonable doubt" that the transgender health care ban violates Constitutional rights, he wrote.
"The plaintiffs argue the challenged statutes are subject to strict scrutiny," Lofgren wrote. "However, this heightened scrutiny hinges upon inclusion in a protected class not previously recognized by the North Dakota Supreme Court or a new application of state constitutional principles."
The lawsuit was brought against North Dakota Attorney General Drew Wrigley, who declined to comment on the case. State's attorneys in Burleigh, Cass and Stark counties were also named as defendants in the case since that's where the three families live. The state's attorneys no longer have to appear for hearings, according to court filings.
Gender Justice, which is representing the three families and Dr. Luis Casas, said in a statement that it was disappointed in the ruling but was confident the ban will ultimately be overturned.
"Kids in North Dakota who need the literally life-saving health care that this law denies them will continue to suffer harm as long as the law remains in effect," Brittany Stewart, a Gender Justice senior staff attorney, said in the statement.
April Baumgarten has been a journalist in North Dakota since 2011. She joined The Forum in February 2019 as an investigative reporter. Readers can reach her at 701-241-5417 or abaumgarten@forumcomm.com.
Children can’t make personal medical decisions due to their lack of maturity just like children aren’t mature enough to decide to drive a tank into battle. The pediatrician should be referred to the state’s medical board for malpractice. I would like to say, have CPS check on the children, but there’s no way to know whether or not that would be worse for the children.