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Scales of justice and gavel
The ban violates the rights to privacy and free speech guaranteed by the Montana Constitution, and it amounts to discrimination based on viewpoint, Judge Jason Marks wrote.
A Montana court has struck down the state’s ban on gender-affirming care for transgender minors.
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The Fourth Judicial District Court Tuesday granted summary judgment, that is, a ruling without a full trial, in favor of those who sued to challenge the ban — medical providers and families with trans children — and issued a permanent injunction against its enforcement.
The ban violates the rights to privacy and free speech guaranteed by the Montana Constitution, and it amounts to discrimination based on viewpoint, Judge Jason Marks wrote for the court.
“The Court is forced to conclude that the State’s interest is actually a political and ideological one: ensuring minors in Montana are never provided treatment to address their ‘perception that [their] gender or sex’ is something other than their sex assigned at birth. In other words, the State’s interest is actually blocking transgender expression,” Marks wrote. He also noted that the banned care is supported by every major medical association.
The ban, Senate Bill 99, was passed by legislators and signed into law by Republican Gov. Greg Gianforte in 2023. Banned treatments for people under 18 include puberty blockers, hormones, and surgeries if done for the purpose of gender transition; they’re allowed for cisgender young people who have a disorder of sexual development. Genital surgeries are almost never performed on minors.
Health care professionals who violate the law could see their licenses suspended for up to a year. SB 99 further allows them to be sued for up to 25 years after performing a banned procedure, and these procedures could not be covered by malpractice insurance.
When the bill was being debated in the spring of 2023, Democratic state Rep. Zooey Zephyr, who is trans, famously said legislators who supported it would have blood on their hands due to the risk of suicide or other self-harm among trans youth, especially if they do not receive gender-affirming care. She was banned from the Montana House floor for the remainder of the session. After she was reelected last year, she was allowed back in.
If the state appeals Tuesday’s district court ruling, the decision is likely to be affirmed, as the Montana Supreme Court last year upheld a preliminary injunction that blocked SB 99’s enforcement while the case proceeded. Since the ruling is based on the Montana Constitution, not the U.S. Constitution, trans youth, their families, and health care providers are protected from any potential negative outcome at the U.S. Supreme Court, according to Lambda Legal, the American Civil Liberties Union, and the ACLU of Montana, which represented the plaintiffs in the case. The U.S. Supreme Court will rule this year on whether Tennessee’s ban on gender-affirming care for trans minors and similar bans violate the U.S. Constitution.
Plaintiffs in the Montana suit include Molly and Paul Cross and their 17-year-old transgender son, Phoebe; Jane and John Doe joining on behalf of their 16-year-old transgender daughter; and two providers of gender-affirming care who brought claims on their own behalf and on behalf of their Montana patients. They and their lawyers welcomed the ruling.
“I will never understand why my representatives worked so hard to strip me of my rights and the rights of other transgender kids,” Phoebe Cross said in a Lambda Legal-ACLU press release. “It’s great that the courts, including the Montana Supreme Court, have seen this law for what it was, discriminatory, and today have thrown it out for good. Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”
“Today, the court saw through the state’s vitriol and hollow justifications and put the final nail in the coffin of this cruel and discriminatory law,” said Lambda Legal staff attorney Nora Huppert. “No parent should ever be forced to deny their child access to the safe and effective care that could relieve their suffering and provide them a future. Because Montana’s Constitution protects their right to privacy, transgender youth in Montana can sleep easier tonight knowing that they can continue to thrive.”
“We are very pleased that the court saw through the State’s unfounded arguments about why gender-affirming medical care should be treated differently from other forms of care,” added Malita Picasso, a staff attorney with the national ACLU. “The court recognizes SB 99 for what it truly is, an effort by the state to legislate transgender Montanans out of existence.”
“The Montana Constitution protects the privacy and dignity of all Montanans,” said ACLU of Montana Executive Director Akilah Deernose. “In the face of those protections, cruel and inhumane laws like SB 99 will always fail. Today’s decision should be a powerful message to those that seek to marginalize and harass transgender Montanans.”
