Montana court strikes down ban on gender-affirming care for minors
Monique Merrill
(CN) — Transgender youth in Montana regained access to gender-affirming care after a state court declared a law restricting that care unlawful on Tuesday.
“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,” Montana Fourth Judicial District Court Judge Jason Marks wrote in a 59-page order. “In other words, the state’s interest in actually blocking transgender expression.”
Senate Bill 99, passed in 2023, bans puberty blockers, cross-sex hormone treatments, surgical procedures and other forms of gender-affirming care to treat minors experiencing gender dysphoria. Doctors who violate the law are subject to discipline, including having their license suspended for at least one year.
The families of two transgender teenagers, joined by two health care providers, sued the state over the bill, arguing that it violated their rights to privacy and equal protection under the state Constitution.
Marks issued a preliminary injunction blocking enforcement of the law just days before it was set to take effect in September 2023, and the Montana Supreme Court upheld that injunction in December 2024, finding the law likely violated the constitutional right to privacy.
Back in state court, Marks found that the state’s arguments in defense of the law failed.
The state argued that it had a compelling interest to protect minors from pressure to receive “experimental” treatments and that the law enhances that protection. However, the state was unsuccessful in proving that the treatments targeted by the law pose a “medically acknowledged, bona fide health risk.”
The families provided “undisputed evidence that major medical organizations acknowledge the gender-affirming medical care banned by SB 99 is generally appropriate for treating adolescents with gender dysphoria,” Marks found.
The state, rather than providing evidence to contradict that offered by the plaintiffs, argued that no medical consensus existed on the benefits of gender-affirming care.
“This is the incorrect standard,” Marks noted. “The question is whether a medically acknowledged, bona fide health risk exists. Based on the position of the United States' major medical organizations and their endorsement of the guidelines for treating adolescents with gender dysphoria, there is no genuine dispute that it does not.”
The state relied heavily on people they called “detransitioners,” or those who received gender-affirming medical care and came to regret the choice, to argue that the existence of those people posed a bona fide health risk. However, Marks noted that both sides agreed that the rate of regret was relatively low.
“It is illogical for the Montana Legislature to pass laws regulating medical treatment that would hurt a majority where it might help the minority,” Marks wrote, adding that under such standards almost every medical treatment could be subject to state interference (such as prostatectomy, which carries around a 30% regret rate).
“SB 99 is both underinclusive and overinclusive,” Marks wrote. “It is underinclusive because the undisputed facts show that similar concerns exist with other medications provided to minors that are not banned by SB 99.”
It’s overinclusive because none of the state’s interests — such as protecting minors from pressure from medical providers, protecting minors from risks and protecting minors from possible regret — explain why the gender-affirming care for minors is banned in all cases, Marks found.
The state also argued that the protections afforded to Montanans under the state Constitution don’t apply to minors when there’s a compelling state interest and when the provisions enhance minors' protections.
The argument fell flat as Marks determined that nothing in the record supported a finding that the law would enhance minors’ protections. Concluding otherwise would lead to “absurd results,” such as categorically banning flu shots for all minors to protect the small percentage who experience allergic reactions to the vaccine, Marks noted.
The court also found that the law targets transgender minors and infringes the plaintiffs’ rights to equal protection. Under the law, health care providers are prohibited from administering certain care when it is sought by minors experiencing gender dysphoria but permitted to administer the same care to any other minor when it is sought for all other purposes.
Additionally, Marks determined that the law infringes on the constitutional rights to freedom of speech and expression by restricting medical providers from making referrals, even to out-of-state providers.
“This goes beyond any permissible regulation of conduct,” Marks wrote.
The ruling was met with relief from the plaintiffs.
“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, a 17-year-old transgender boy and one of the plaintiffs in the case, said in a statement. “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.”
American Civil Liberties Union staff attorney Malita Picasso celebrated the court’s decision.
“The court recognizes SB 99 for what it truly is, an effort by the state to legislate transgender Montanans out of existence,” Picasso said in a statement.
The Montana Attorney General’s Office did not provide a comment before press time.