In T.D. v. Wrigley, (ND Sup. Ct., Sept. 17, 2026), the North Dakota Supreme Court rejected a facial attack on North Dakota's ban of both hormonal and surgical gender-affirming treatment for minors suffering from gender dysphoria. The court held unanimously that the statute does not violate North Dakota's state constitution. The court said in part:
Dr. Casas contends the Act “infringes on fundamental and inalienable rights enshrined in Article I, § 1 of the North Dakota Constitution.....
... [T]he issue is whether a minor has a fundamental right to a particular course of medical treatment.
Having identified the right at issue, we address whether the right is one the people intended when they adopted Article I, § 1...
Dr. Casas performs no meaningful historical inquiry tied to the alleged right at issue. He does not argue the records of the constitutional convention discuss a right for a minor to receive a particular course of medical treatment. He points to no newspaper coverage of the convention reporting public discussion of the right he asserts on behalf of his minor patients. Dr. Casas also does not cite a single case before or around 1889 interpreting another state’s natural rights provision to include the right of a minor to receive a particular course of medical treatment.... To the contrary, since statehood, the State has regulated the practice of medicine and prohibited certain medical practices. It has also protected minors’ health and welfare by limiting their rights to make certain decisions or participate in certain activities....
... The State has regulated the practice of medicine since statehood, including prohibiting particular medical procedures notwithstanding physician approval....
Dr. Casas argues the Act classifies based on sex and discriminates against transgender individuals, a class he asserts should be recognized as a suspect class. He argues the district court erred by reviewing the Act under the rational basis standard instead of the strict scrutiny standard. The State responds the Act classifies based on age and medical purpose, not sex or transgender status, and therefore is subject to rational basis review....
Because the Act neither burdens a fundamental right nor classifies based on a suspect class, it is subject to rational basis review....
Contrary to Dr. Casas’s argument, the legislature’s response to the medical uncertainty about the risks and benefits of gender-affirming treatment is not arbitrary. Gender-affirming treatment of minors is relatively novel..... In light of the debate among medical experts about the potential serious and irreversible risks associated with providing gender-affirming treatment to minors, the legislature could rationally decide the procedures are too dangerous for minors, particularly because they may not fully appreciate the long-term consequences of the treatment. ...
Justice Tufte, joined by Justice Jensen, filed a concurring opinion, saying in part:
I write separately because the briefs rest on a premise our modern cases have repeated but never examined: that §§ 21 and 22 [of the North Dakota Constitution] are “equal protection” clauses administered through three tiers of scrutiny determined by suspect classes and a judicial ranking of rights. That construction was assembled between 1974 and 1988 from borrowed federal materials, without examining the text of the state constitution or the history that produced it. The sections themselves are much older. They were copied from an identifiable source and had a settled public meaning when North Dakota’s voters approved them on October 1, 1889. The majority applies our traditional analysis in its discussion of N.D. Const. art. I, § 1. It asks what the words of § 1 meant to the people who adopted them in 1889.... No party asked us to do the same for §§ 21 and 22. Because it appears to me our modern doctrine has strayed from its proper sources, I set forth some of these sources below so that the meaning of these provisions may be more carefully examined in a future case...
Liberty Counsel issued a press release reporting on the decision.
