Court victories inspire new lawsuits from trans, intersex, Two-Spirit plaintiffs

In June, Arkansas became the first state to see its ban on gender-affirming care for minors blocked by the courts. In September, a district court judge temporarily blocked Montana’s ban on gender-affirming care for transgender youth, which was set to take effect on October 1.

Those two victories have inspired plaintiffs in North Carolina and Montana to challenge anti-LGBTQ+ laws passed by Republican-led legislatures.

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In North Carolina last week, the family of a trans boy and a medical doctor filed suit with PFLAG and Lambda Legal against officials in the state, arguing the state’s law banning gender-affirming health care for transgender minors discriminates on the basis of gender identity and infringes on parental rights to make medical decisions on behalf of their own children.

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The next day, a group of intersex, Two-spirit, and trans plaintiffs filed suit in Montana, challenging a law that went into effect in May that amends the state code to declare “male” and “female” are the only two sexes. They assert the law is unconstitutional and amounts to sex-based discrimination.  

Plaintiffs in North Carolina say that House Bill 808, which Republicans passed with a super-majority after Democratic Gov. Roy Cooper vetoed the legislation in August, violates the equal protection clause of the 14th Amendment. The law prohibits doctors from prescribing hormone therapy or puberty blockers to minors and outlaws gender-affirming surgery for anyone under 18 (though such surgeries are rarely, if ever, performed on minors).

“Gender-affirming medical care is safe and effective, it is evidence-based, and it is widely accepted,” said Lambda Legal counsel and health care strategist Omar Gonzalez-Pagan at a press conference announcing the suit. He called the plaintiffs “courageous” for taking their fight public.

The challenge to Montana’s Senate Bill 458 is notable for including intersex people among the plaintiffs, with three trans people, two intersex people, and the Montana Two-Spirit Society named in the suit.

The Montana plaintiffs challenge the idea that there are only two biological sexes, arguing that the gender binary classification is a form of “colonization” meant to “eradicate Two-Spirit culture.”

The gender binary also perpetuates the mutilation of intersex children.

Laws prohibiting gender-affirming care for minors in Texas and Florida carve out exceptions to their surgery bans that permit procedures on infants born with “ambiguous genitalia.” Those procedures are conducted more often in pursuit of “normalizing” children’s genitals than for any medically necessary reason. Intersex activists seek to make such surgeries illegal, preferring to wait until intersex individuals can provide informed consent before receiving any surgical procedures.

“S.B. 458 is motivated by animus and a bare desire to harm,” the Montana lawsuit states, while it violates the 14th Amendment and the plaintiffs’ right to privacy and free speech.

The plaintiffs also claim the law violates the Montana constitution’s “dignity clause,” an article that outlaws “treatment which deliberately reduces the value of persons.”

That clause was cited in the decision blocking the state’s ban on gender-affirming care for transgender youth in September.