North Dakota Supreme Court Upholds Law Banning Child Medical Mutilation

Enacted in April 2023, the state’s HB 1254 makes it a felony to perform mutilating gender surgeries on children and a misdemeanor to prescribe them puberty blockers and hormone therapy for treating gender confusion.

A pediatric endocrinologist and several families with gender-confused children sued to block the law arguing those adolescents have a right to this particular medical treatment and denying it is a form of sex discrimination because the procedures remain available for other medical conditions.

Writing for the court, Justice Douglas Bahr grounded the decision in the meaning of “inalienable rights” as understood in 1889 when North Dakota achieved statehood and its constitution was adopted.

Justice Bahr stated that while “times have changed, the meaning of the Constitution has not.” He noted that the court must apply the constitution as understood by the people who adopted it to the situation that now exists, while careful not to misconstrue “policy preferences” into a “previously unrecognized fundamental right.”

“This Court does not create fundamental rights,” wrote Justice Bahr. “When asked to acknowledge a fundamental right, we carefully analyze the text and history of [the constitution] to avoid usurping the authority our constitution ‘entrusts to the people’s elected representatives.’”

Since statehood, Justice Bahr explained, North Dakota legislators have regulated the practice of medicine, prohibited certain medical practices, and protected the welfare of minors by limiting their decision-making in certain activities. He wrote that defining a constitutional right around a “novel” medical diagnosis or procedure “forecloses” that right because it is not deeply rooted in history and tradition.

“North Dakota’s long history of prohibiting abortions except to preserve a woman’s life belies [plaintiff’s] argument that minors have a fundamental right to a particular course of medical treatment,” reads the ruling.

The ruling states that HB 1254 is a legitimate government response to the “potential serious and irreversible effects” of these procedures on minors, who often have the “immaturity, inexperience, and lack of judgment” that may sometimes “impair” their decision making.

As for sex discrimination, the court concluded the law classifies based on age and medical purpose, not sex.

“A biological male and a biological female are subject to the same restrictions under the Act; neither may receive the treatments for the prohibited purpose,” reads the ruling.

Justice Bahr noted that the ruling is consistent with the U.S. Supreme Court’s recent Skrmetti decision that upheld a similar law in Tennessee on the basis of age and medical purpose, as well as rulings from the Eleventh, Eighth, and Seventh Circuit Courts of Appeal which all upheld similar laws in Alabama, Arkansas, and Indiana, respectively.

Liberty Counsel’s Founder and Chairman Mat Staver said, “North Dakota’s law recognizes biological reality that a person cannot change their sex and protects children from irreversibly mutilating procedures. There is no fundamental right to barbaric medical procedures, and the North Dakota Supreme Court rightly ruled the state has the power to protect children from harm. Bans on medical mutilation are constitutional and all state legislatures should enact similar laws to protect children.”