N.D. Supreme Court chambers
BISMARCK, ND (North Dakota Monitor) – Attorneys challenging the state’s ban on gender-affirming healthcare for minors told the North Dakota Supreme Court that the law will keep life-saving care from adolescents who need it.
South Central District Court Judge Jackson Lofgren in October found that the 2023 law, which makes it a crime to prescribe puberty blockers and other treatments to adolescents, does not violate the state constitution.
The plaintiff, pediatric endocrinologist Dr. Luis Casas, and his attorneys announced in February their decision to appeal Lofgren’s ruling.
The North Dakota Supreme Court heard oral arguments on the case Tuesday afternoon. Northeast Judicial District Judge Michael Hurly sat in for Justice Mark Friese, who recused.
Casas wants the high court to find Lofgren’s analysis of the law was incorrect, and to send the case back to the district court level for further review.
Tanya Pellegrini, one of the attorneys representing Casas, emphasized to justices Tuesday that the gender-affirming care ban denies North Dakotans’ right to make their own healthcare decisions.
Pellegrini said that the high court has recognized this right in previous rulings. As one example, she pointed to the court’s 2023 finding that women have a constitutional right to obtain an abortion to preserve their life and health.
She noted that one of Casas’ patients testified in court last year that gender-affirming care saved her life. Pellegrini also referenced Casas’ testimony last year that one of his patients attempted suicide because the healthcare ban had prevented them from receiving treatment.
Pellegrini called it “completely unprecedented” for North Dakota lawmakers “to single out a population from being able to receive medical care, categorically ban their medical treatment, and override parental consent.”
She said the law is a form of sex discrimination because it bars minors with gender dysphoria from accessing necessary medical treatments that are otherwise available to kids to treat other medical conditions.
She said Lofgren was wrong not to make this finding, and that this led to an incorrect conclusion that the law is constitutional.
North Dakota Solicitor General Philip Axt on Tuesday asked the court to uphold Lofgren’s ruling, arguing that the state has an interest in regulating the medical field to protect minors.
Axt doubled down on the state’s position that the science behind gender-affirming care is unsettled and therefore the Legislature had a reasonable basis for adopting the law. He noted that other-Republican led state courts have made similar conclusions.
He also disputed the plaintiff’s argument that access to this care is constitutionally protected.
“There’s no way to conclude the people of North Dakota in 1889 would have understood our constitution as creating a right to perform these procedures on children,” Axt said.
Axt characterized gender dysphoria as a mental health condition, and said that North Dakota courts have not found that North Dakotans have a right to obtain care for mental health purposes.
He also said that the law does not discriminate based on sex.
“No child of either gender can be subjected to these procedures for the purpose of changing their gender appearance,” he said.
Lofgren’s October decision hinged in part on his conclusion that transgender people do not qualify for special legal protections, and that the gender-affirming care ban does not discriminate on the basis of sex.
Unless judges find that a law affects a protected group or restricts an important right, they are generally deferential to the Legislature, experts told the North Dakota Monitor previously. In these cases, it’s much more difficult to find that a law violates the constitution.
Lofgren in his October opinion frequently cited the U.S. Supreme Court’s decision upholding Tennessee’s ban on gender-affirming care for minors.
Chief Justice Lisa Fair McEvers noted during Tuesday’s hearing that Tennessee’s law, unlike North Dakota’s, does not establish a criminal penalty. She asked Axt if North Dakota lawmakers have the discretion to establish criminal penalties for any area they regulate.
Axt responded that this is part of the Legislature’s job.
The lawsuit was originally brought against the state of North Dakota by three families with transgender children in addition to Casas. Lofgren later dismissed the families and children from the suit, finding they did not have standing to bring it. That left Casas as the sole plaintiff.
Lofgren presided over a seven-day court trial in early 2025 that included testimony from doctors, as well as two transgender teens and their parents who were initially plaintiffs in the case.
Attorneys for Casas during the trial noted that the majority of leading medical associations in the U.S. have found gender-affirming care to be a safe and effective treatment for adolescents with gender dysphoria.
Aside from finding Lofgren used the incorrect legal standard in analyzing the case, the North Dakota Supreme Court could also decide to uphold the district court’s decision. Or, it could find Lofgren applied the right framework but disagree with his conclusion that the law is constitutional, attorneys for Gender Justice told the North Dakota Monitor previously.
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