Litigation on gender transition a growing possibility in North Carolina and other states

Legislation vetoed by Gov. Roy Cooper to protect minors from permanent life-altering gender transitions faces a likely override when Republican supermajorities in the General Assembly return next week.

The anticipated approval of House Bill 808 over the Democratic governor’s objections would ban medical professionals in North Carolina from performing gender transition surgeries or prescribing puberty blockers or cross-sex hormones to minors, mirroring legislation adopted in 20 other states.

North Carolina Democrats opposed to the ban have already warned the legislation is expected to face legal challenges, a concern that has gone largely unaddressed publicly by Republican bill sponsors and legislative leaders.

Pending legal challenges are in multiple states.

Federal courts in Alabama, Arkansas, Indiana and Florida have blocked similar bans on gender transitions for minors amid ongoing court battles, while Republican Oklahoma Attorney General Gentner Drummond agreed to stay enforcement of the same pending a legal challenge from the American Civil Liberties Union.

Federal judges in Kentucky and Tennessee last week also enjoined laws against transitions for minors from taking effect while lawsuits challenging the bans proceed.

The lawsuits have largely centered on arguments from families of transgender youth who contend the treatments are medically necessary. Attorneys argue the bans violate the U.S. Constitution’s right to equal protection by outlawing medical treatments on the basis of sex, prohibiting parents to make medical decisions for their children.

Republicans have argued the laws are designed to protect children from life-altering treatments for gender dysphoria, a condition that some studies suggest is temporary.

In Kentucky, where Republican lawmakers overrode Democratic Gov. Andy Beshear’s veto, U.S. District Judge David Hale found seven families challenging the law are likely to prevail. His order to stop the law states puberty blockers and hormones are “medically appropriate and necessary for some transgender children.”

The week prior, U.S. District Judge James Moody Jr. agreed to permanently block a ban on all gender transition treatments for minors following an eight-day trial in December.

Moody wrote that “the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the State undermined the interests it claims to be advancing.”

Arkansas Attorney General Tim Griffin vowed to appeal Moody’s ruling.

North Carolina Democrats and ACLU of North Carolina repeatedly referenced the Arkansas ruling in committee debates.

In cases in Alabama and Tennessee, the U.S. Department of Justice in April intervened in challenges to similar bans, arguing legislation in those states violate the Equal Protection Clause of the U.S. Constitution.

“No person should be denied access to necessary medical care just because of their transgender status,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division wrote regarding the Tennessee lawsuit. “The right to consider your health and medically-approved treatment options with your family and doctors is a right that everyone should have, including transgender children, who are especially vulnerable to serious risks of depression, anxiety and suicide. The Civil Rights Division of the Justice Department will continue to aggressively challenge all forms of discrimination and unlawful barriers faced by the LGBTQI+ community.”

Attorneys for the ACLU have said that while none of the cases have been fully resolved in the courts, early success in blocking the laws bodes well for efforts to permanently reverse them.