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Montana Supreme Court chamber
Those who sued to challenge the ban are likely to succeed in proving it violates their privacy rights, the court ruled.
The Montana Supreme Court has upheld a preliminary injunction blocking enforcement of the state’s ban on gender-affirming care for transgender youth while a lawsuit against it is heard.
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The court upheld a lower court’s decision to grant the injunction on the basis that those who sued are likely to succeed in proving that the ban violates the Montana constitution and citizens’ right to privacy. Two justices filed concurring opinions in which they argued that the court should clarify that discrimination based on transgender status is sex discrimination and therefore prohibited under the state constitution’s equal protection clause. It is the first state Supreme Court to make such a ruling.
“The Legislature did not make gender-affirming care unlawful,” the Supreme Court’s opinion states. “Nor did it make the treatments unlawful for all minors. Instead, it restricted a broad swath of medical treatments only when sought for a particular purpose. The record indicates that Provider Plaintiffs, or other medical professionals providing gender-affirming care, are recognized as competent in the medical community to provide that care. The law puts governmental regulation in the mix of an individual’s fundamental right ‘to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider.’”
“The District Court made no error of law and did not manifestly abuse its discretion,” the opinion concludes. “We affirm its grant of a preliminary injunction on the basis of Plaintiffs’ right to privacy claim. The case will proceed to trial, at which point the District Court will finally resolve the disputed facts and issue a final determination on the constitutional issues presented.”
Gov. Greg Gianforte, a Republican, signed the ban, Senate Bill 99, into law in April 2023. 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. Banned treatments for people under 18 include puberty blockers, hormones, and surgeries if done for the purpose of gender transition; they’re allowed for young people who have a disorder of sexual development. Genital surgeries are almost never performed on minors.
Trans youth and families, along with some health care providers, sued the following month to challenge the law. They are represented by Lambda Legal, the American Civil Liberties Union, the ACLU of Montana, and the law firm of Perkins Coie. In September 2023, Missoula County District Court Judge Jason Marks issued a preliminary injunction, saying the state cannot enforce the ban as the lawsuit against it proceeds. The suit will go to trial before Marks.
“Today’s ruling permits our clients to breathe a sigh of relief,” Akilah Deernose, executive director of the ACLU of Montana, said in a press release. “But the fight for trans rights is far from over. We will continue to push for the right of all Montanans, including those who are transgender, to be themselves and live their lives free of intrusive government interference.”
“Fortunately, the Montana Supreme Court understands the danger of the state interfering with critical healthcare,” Lambda Legal Counsel Kell Olson said in the release. “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.”
“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” added Phoebe Cross, a 17-year-old transgender boy. “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 spokesperson for the Montana attorney general's office said the staff looks forward to defending the law. “In upholding the district court’s flawed decision to temporarily block a duly enacted law, the Supreme Court put the wellbeing of children — who have yet to reach puberty — at risk by allowing experimental treatments that could leave them to deal with serious and irreversible consequences for the rest of their lives to continue,” spokesperson Chase Scheuer told the Associated Press.
When Montana legislators were considering the ban, Democratic Rep. Zooey Zephyr, who is transgender, said they would have blood on their hands if they passed it. The Republican majority in the Montana House quickly banned her from the chamber, and she finished her term working remotely. She was reelected in November and will return to the House floor. She praised the Montana Supreme Court's ruling Wednesday, telling the AP the court “has reaffirmed what we have known all along — gender-affirming care saves lives, and like all health care decisions, it should be left between doctors and patients."
