When North Dakota lawmakers approved a ban on gender-affirming care for minors, they carved out an exemption advertised as a way to spare children from abruptly being pushed off medication.
The law says kids can continue receiving treatment “if the performance or administration of the medical procedure” started before the law took effect.
Yet documents filed in an ongoing lawsuit challenging the ban indicate that’s not happening.
The plaintiffs — three families with transgender children and Dr. Luis Casas, a North Dakota endocrinologist employed by Sanford Health — claim the exemption, as currently written, is too vague to enforce. Health care providers have no confidence it would protect them.
“To my knowledge, in light of the health care bill, there are no pediatric endocrinologists who currently provide this care in the state of North Dakota, even to patients who they had previously been treating,” Casas wrote in a statement filed in court.
Casas’ North Dakota patients now must travel to his Moorhead, Minnesota office for gender-affirming care.
Some are driving hours, traveling from as far away as Bismarck, Minot or western North Dakota to see him. Those who can’t afford the trip are simply foregoing the treatment, Casas said in his statement.
Tate Dolney, 12, has been on puberty blockers for three years. He’s been a patient of Casas since he was 9. The Dolneys say gender-affirming care has been life-saving for Tate.
When asked what would happen if he had to push an appointment with Casas, Tate frowned and gave a thumbs-down sign.
He doesn’t even want to think about missing treatment. He just wants to focus on being a kid: playing video games, spending time with his four pet rats (Mocha, Macchiato, Chai and Cappuccino) and participating in activities like taekwondo, choir, orchestra and youth symphony.
Luckily for the Dolneys, who are plaintiffs in the case, Casas’ Moorhead office is a short drive across the state border.
But that doesn’t mean they haven’t been impacted by the new law. Court documents state that in wake of the ban, Casas cannot communicate with North Dakota families when he’s not in Moorhead for fear of violating the law. And he’s only there twice a month, the records indicate.
Previously, if Tate or his parents had any questions for Casas, the family usually heard back within the same day, said Devon Dolney, Tate’s mom.
“That’s definitely not the case anymore,” they said.
The ban received broad support from North Dakota legislators, with many backers arguing the measure protects children. The legislation cleared each chamber of the Legislature with over two-thirds approval by lawmakers. Gov. Doug Burgum signed the legislation, adopted as an emergency measure, on April 19.
The statute makes it a misdemeanor to prescribe medications like puberty blockers and hormone therapy to minors for the purpose of gender-affirming care. Health care professionals found guilty of violating the measure could be sentenced to up to 360 days in jail and face fines of up to $3,000. Providers also are concerned about an impact to their medical license, according to the plaintiffs’ complaint.
The law also makes it a felony to perform transition-related surgery for a minor. Anyone found guilty of doing so would face up to 10 years in prison and a maximum $20,000 fine. In hearings on the bill earlier this year, health care providers told lawmakers such surgeries for minors are not happening in North Dakota.
Casas, the Dolneys and two other families with children receiving gender-affirming care in September filed a lawsuit against the state of North Dakota challenging the new law. The plaintiffs argue the law is unconstitutional because it violates parents’ ability to make medical decisions for their children and unfairly denies transgender kids access to treatments that are still available to other children.
All of this is only happening to transgender kids.
– Dr. Luis Casas
In November, South Central Judicial District Judge Jackson Lofgren denied the plaintiffs’ request for a temporary restraining order, which would have immediately blocked the state’s ban.
Plaintiffs also asked for a preliminary injunction which, if granted, would lift the ban until the court makes a final decision on the case. A hearing on the preliminary injunction is slated for January in South Central District Court.
The plaintiffs are represented by Gender Justice, a Minnesota and North Dakota advocacy group.
In court documents, the plaintiffs take aim at the exemption, arguing the legacy clause can’t be enforced because it doesn’t specify which kinds of “medical procedures” are protected.
“The exception to the health care ban does not put health care providers on notice of what care is permitted and what care is prohibited for patients who had received some form of gender affirming care” before the ban went into effect, the plaintiffs stated in a legal complaint filed in September.
Should the exemption cover surgeries? Prescriptions? How about a quick phone call with patients?
Doctors aren’t taking any chances.
Administrators of health care systems have told doctors they can’t provide gender-affirming care in light of the ban, Brittany Stewart, the lead attorney for the plaintiffs, said during a November court hearing.
A spokesperson for Sanford Health, where Casas works, would not confirm whether that was the provider’s official stance.
“Sanford Health is committed to providing exceptional health care for all we serve, including those with gender-related care needs,” Jessica Schindeldecker, senior communications specialist for Sanford Health Fargo, said in a statement to the North Dakota Monitor. “Our physicians provide evidence-based medical care in accordance with the applicable state laws where we operate. We encourage patients to talk with their doctor about how we can best support their health care needs.”
The state has argued in court that the law isn’t vague and the care adolescents like Tate receive from Casas does, indeed, fall under the exemption.
“It’s their doctors who refuse to provide the treatment closer to home based on their erroneous view of the law,” Special Assistant Attorney General Joe Quinn, the lead attorney for the defense, said at a November hearing.
Stewart said Gender Justice approached the attorney general’s office with a draft order that, if entered into evidence, would formalize that position. The proposed agreement aims to let doctors like Casas know they could continue providing gender-affirming care to minors in North Dakota, so long as those patients were receiving treatment before the ban, Stewart said.
“They have, so far, been unwilling to sign onto that stipulation,” she said.
Gender Justice declined to provide the Monitor with a copy of the draft proposal, and a request for comment from the attorney general’s office was not returned.
In court documents, all three families involved in the suit stated they’re considering moving out of state in wake of the ban.
“The choice of appointment times and days are very limited,” two parents named in the case under the pseudonyms John and Jane Doe stated in court documents. “In order to make the appointments in Minnesota, we now have to take a day off work and school, plus cover the cost of a hotel room and gas.”
Some of Casas’ patients are struggling to get medication because not all North Dakota pharmacies are willing to dispense medication if it’s for the purpose of providing gender-affirming care to minors, Casas disclosed in a statement that’s part of the lawsuit.
He also said patients are struggling to get prescriptions refilled on time because he can only provide them when he’s working in Minnesota.
“All of this is only happening to transgender kids,” Casas said in the statement. “All other adolescents can receive the exact same medications and treatments without any problems.”
Like Minnesota Reformer, North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: [email protected]. Follow North Dakota Monitor on Facebook and Twitter.
