Judge rules lawmakers can be called to testify in gender-affirming care case

State Reps. Brandon Prichard, left, and Bill Tveit were subpoenaed to testify in a lawsuit challenging the state's ban on gender-affirming care for minors. (Photos provided by the North Dakota Legislative Assembly)

Two state lawmakers are expected to testify in a lawsuit challenging North Dakota’s ban on gender-affirming care for minors after a judge last week resolved a dispute over whether the legislators could be ordered to speak about the law.

Attorneys for Gender Justice, the advocacy group representing the plaintiffs, last month sought to subpoena Rep. Bill Tveit, R-Hazen, and Rep. Brandon Prichard, R-Bismarck, for depositions related to social media posts the lawmakers made discussing the ban and LGBTQ issues in North Dakota.

Tveit was the primary sponsor of the 2023 legislation, while Prichard was a co-sponsor.

The representatives through Deputy Solicitor General Katie Carpenter responded with a motion to quash the subpoenas, arguing that lawmakers would be required to divulge privileged information about their work on the ban and that the orders would be too burdensome to comply with.

South Central District Court Judge Jackson Lofgren in a Friday order upheld the subpoenas, but said the plaintiffs’ attorneys could only question Prichard and Tveit about public statements the lawmakers have made.

“The Court finds the Representatives, through their actions, have elected to waive legislative privilege in a limited capacity,” Lofgren wrote in the order. “By posting their thoughts on social media, pertaining to the current litigation, they have opened themselves up to questioning about their social media posts.” 

In previous court documents, the plaintiffs stated they wanted Prichard and Tveit to testify on their posts in part because they express “bias against transgender and LGBTQ people,” which the plaintiffs argued could be relevant to the lawsuit.

The plaintiffs referenced multiple comments by Prichard containing anti-LGBTQ views, including a January post on X, previously Twitter, where he stated “The LGBTQ agenda is evil and bad for North Dakota” and asked, “What even is a queer?”  

Court records indicate that Prichard was served with the subpoena on March 26, but that attempts to serve Tveit were unsuccessful as of April 18.

Prichard told the North Dakota Monitor previously  he believes the plaintiffs want him to testify because he spoke in favor of the legislation on the House floor and was an avid backer of the ban in committee meetings.

He also said he believes the Gender Justice attorneys only want a “gotcha” moment that would bolster their case.

The ban on gender affirming care for minors was signed into law by Gov. Doug Burgum in April 2023.

In September, a group of families and doctors filed suit against the state, arguing the law discriminates against transgender adolescents by denying them treatments that are still legal for other kids to receive for other medical reasons. They also claim the ban infringes on parents’ constitutional right to make medical decisions for their kid.

Attorneys for the state have said previously that the law, which was adopted by North Dakota’s Republican-dominated Legislature with more than two-thirds support from lawmakers, should stay in place because it protects children.

Under the ban, it’s a class A misdemeanor to administer medications — including puberty blockers and hormone therapy — to children for the purpose of providing gender-affirming care.

Providers found to have violated this part of the law could face up to 360 days in jail, fines of up to $3,000 or both.

The law also makes it a class B felony to perform transition-related surgery on a minor — which means up to 10 years in prison and a maximum $20,000 fine. In hearings on the bill, health care professionals testified that transition-related surgeries are not performed on minors in North Dakota.

The law does carve out an exception for those who were receiving gender-affirming care before the legislation was adopted, though the plaintiffs have said the provision is worded too vaguely for doctors to know when it applies. As a result, North Dakota doctors are not providing gender-affirming care to any minors, even those who were receiving treatment before the ban, the plaintiffs argue.

Both parties are waiting for Lofgren to rule on a motion to suspend enforcement of the law while the case plays out in court.

The plaintiffs asked for a preliminary injunction on the legislation in 2023, claiming the law will cause irreparable harm to children who need gender-affirming care if left in place.

Witnesses testified for and against suspending the ban at a January hearing in Bismarck.

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