The Montana Supreme Court on Wednesday upheld a Missoula judge’s decision to temporarily block the state’s 2023 law that bans certain medical treatments for transgender minors, Montana Free Press reports.
In a nearly unanimous ruling penned by Judge Beth Baker, the state’s high court found that, based on Montana’s constitutional right to privacy, the state district court judge did not err when enjoining the Republican-backed Senate Bill 99 from taking effect last fall. Justice Jim Rice authored a partial dissent, though he agreed with his colleagues that the law did not appear to pass the threshold for restricting Montana’s medical privacy rights.
The court did not deliberate on another legal plank in the case dealing with equal protection rights. The justices also reflected that the ruling is far from the final judgment in the matter. Attorneys for the plaintiffs and the state are continuing litigation in Missoula and preparing for a trial currently slated for next summer.
If enacted, SB 99 would bar providers from prescribing puberty blockers, cross-sex hormones and rare surgeries for minors diagnosed with gender dysphoria, and enforce penalties on health care practitioners who violate that prohibition. The law, sponsored by Sen. John Fuller, R-Kalispell, would also prohibit public funding of those procedures.
Similar laws have taken effect in other states. An appeal of a Tennesse law has progressed to the United States Supreme Court, which heard oral arguments over the matter in early December.
In its decision issued Wednesday, the state Supreme Court did not endorse key arguments made by lawyers in the office of Republican Attorney General Austin Knudsen, which is defending SB 99. Knudsen’s office has contended that some of the plaintiffs in the case didn’t have standing to bring the lawsuit and that the medical treatments prohibited by SB 99 are not protected by the state Constitution’s right to individual privacy.
The court stood by the district court’s determination that the plaintiffs, which include transgender minors and their families and Montana medical providers, argued that the banned treatments are within the professional scope of licensed medical providers and are widely approved for the treatment of gender dysphoria, a recognized medical condition.
The lower court found that those claims and accompanying evidence outweighed the state’s arguments that SB 99 properly “sought to protect minors from harmful, experimental treatments,” the justices summarized.
The court also agreed with Missoula Judge Jason Marks that, as in the 1999 case that established Montana’s protections for abortion rights, state laws must clear a high legal threshold to infringe on an individual’s medical privacy.
“Plaintiffs are correct that we have repeatedly reaffirmed Montana’s broad personal autonomy privacy right,” the court wrote. “The Legislature may restrict this fundamental right to privacy only when it can demonstrate a medically acknowledged, bona fide health risk … In those instances, the law must be tailored narrowly so that it is ‘the least onerous path that can be taken to achieve the state objective.’”
SB 99, the ruling continued, does not appear narrowly tailored. Rather, the justice wrote, it “affords no room for decision-making by a patient in consultation with their doctors and parents. The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.”
Spokespersons for the Montana attorney general’s office did not respond to a request for comment about the ruling from Montana Free Press.
Gov. Greg Gianforte, who signed SB 99 into law last year, said in a Wednesday afternoon statement that he was “deeply disappointed” by the court’s decision. The governor’s office has recently reiterated support for the law’s stated goals of limiting gender-affirming treatments for minors, filing an October brief with the U.S. Supreme Court ahead of the oral arguments in the Tennessee case, United States v. Skrmetti.
“Children who struggle with gender identity deserve love, compassion, and respect. They deserve no ridicule, animus, or seclusion. They are entitled to protection, not exploitation,” Gianforte said Wednesday. “While their young minds and bodies are still developing, they should not be subjected to experimental and permanent, life-altering medical and surgical procedures. As this case moves forward, and as the U.S. Supreme Court considers its decision in United States v. Skrmetti, I hope the courts will do the right thing and protect children from these experimental procedures.”
Attorneys representing plaintiffs in the Montana case celebrated the court’s decision in Wednesday statements, saying the order “will allow Montana communities and families to continue accessing medical treatments for transgender minors with gender dysphoria.”
“Fortunately, the Montana Supreme Court understands the danger of the state interfering with critical health care,” said Kell Olson, an attorney with Lambda Legal. “Because Montana’s constitutional protections are even stronger than their federal counterparts, transgender youth in Montana can sleep easier tonight knowing that they can continue to thrive for now, without this looming threat hanging over their heads.”
The lead plaintiff in the case, teenager Phoebe Cross, emphasized the stakes for those who would be impacted if SB 99 were to take effect.
“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” Cross said in a written statement. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”
A former named plaintiff in the case, Scarlett Van Garderen, removed herself from the proceedings earlier this year after she turned 18.
In a separate concurrence also joined by Justice Ingrid Gustafson, Justice Laurie McKinnon agreed with the court’s determination related to the right to privacy but argued that the justices should have also weighed and given guidance on the equal protection claims that parties are debating in the Missoula district court. Those claims, McKinnon noted, are also central to the debates about transgender health care rights playing out at the federal level.
“We do the District Court and the litigants a disservice when we avoid articulating the simple rule that discrimination on the basis of transgender status is sex discrimination, sex discrimination receives strict scrutiny, and that transgender persons comprise a suspect class also triggering strict scrutiny,” McKinnon wrote. “Ignoring the most substantive legal arguments of the case is not an act of judicial restraint or deciding the case narrowly. It is an unjustifiable avoidance of a cornerstone question which, if unanswered, will create further litigation; waste resources and time; and create needless expense as the trial proceeds on the merits.”
In another separate writing, Justice Rice disagreed with the district court’s decision to block SB 99’s prohibition on public funding for gender-affirming care from taking effect. The Legislature has a clear role in deciding how public funds are allocated, Rice said, a duty that should have triggered a more lenient legal review standard by the district and Supreme Court.
Rice also reiterated that multiple ongoing lawsuits dealing with health care access for transgender minors in other states, such as Tennessee and Kentucky, could change the national backdrop as Montana continues to weigh the constitutionality of SB 99.
Given that “changing legal landscape,” Rice stressed that “neither this decision from our Court nor the District Court’s decision should affect in any way the ultimate outcome, which must be based on advancing medical science and law in regard to a serious concern over minors receiving this treatment.”
