Blair Miller

(Daily Montanan) Two transgender Montana teenagers and their families, along with two medical providers of gender-affirming care in the state, are challenging Montana’s newly signed law that bans the treatments for minors and opens practitioners up to professional punishment and lawsuits.

The American Civil Liberties Union of Montana, the national ACLU, Lambda Legal and the Perkins Coie law firm filed a lawsuit in Missoula County District Court on Tuesday asking a judge to declare Senate Bill 99 unconstitutional on multiple grounds and to permanently enjoin the state from enforcing it. Republican Gov. Greg Gianforte signed the measure on April 28, and it takes effect Oct. 1.

The firms and organizations are representing:

  • Scarlet van Garderen, a 16-year-old transgender girl from Belgrade, and her parents;
  • Phoebe Cross, a 15-year-old from Bozeman who is also transgender and uses he/him pronouns, and his parents;
  • Dr. Juanita Hodax, who provides gender affirming care at the Community Medical Center in Missoula and at Seattle Children’s Hospital, and her patients; and
  • Dr. Katherine Mistretta, who performs gender-affirming care at Bozeman Creek Family Health, and her patients

Named as defendants in the lawsuit are the state of Montana; Gianforte; Attorney General Austin Knudsen; the Department of Public Health and Human Services and its director, Charlie Brereton; the Montana Board of Medical Examiners; and the Montana Board of Nursing.

The plaintiffs contend that the new law is a blatant and unconstitutional attack on transgender Montana children, their parents, and the people who provide care for them. The lawsuit says that for multiple reasons, families with transgender children and medical professionals who work in the field are considering leaving the state altogether if the law is allowed to stand.

The Montana Free Press first reported news of the lawsuit Tuesday and spoke with one of the plaintiff families.

“(Senate Bill 99) flies in the face of the Montana Constitution, infringing on myriad fundamental rights guaranteed to Montanans,” the suit states. “These include the right to equal protection of the laws, the right of parents to direct the upbringing of their children, the right to privacy, the right to seek health care, and the right to dignity.”

Lawsuit claims lawmakers ignored medical science to target trans community

The lawsuit essentially reiterates what many medical professionals, transgender children, their parents, and transgender adults told lawmakers at every hearing on the bill this winter and spring. In testimony, they said the bill is unconstitutional; that gender dysphoria is a real condition with evidence-based and broadly accepted standards of care; that treatments for gender dysphoria are medically necessary for some children; that there are stringent processes in place to diagnose and then treat a child experiencing gender dysphoria; and that prohibiting those treatments can have vast negative physical and mental consequences for both the child and their families.

It says the law crafted and supported solely by Montana Republicans represents “vast government overreach” and will harm both transgender children and the doctors and nurses who treat them.

“The act was created to marginalize transgender people. It has no plausible public purpose, and specifically targets transgender people for discriminatory treatment,” lawyers wrote in the complaint.

DPHHS declined to comment on the lawsuit Tuesday.

The Department of Justice did not respond to an email seeking comment.

Rep. Zooey Zephyr leaves the House floor on Wednesday. (Mike Clark/Daily Montana)
Rep. Zooey Zephyr leaves the House floor on Wednesday. (Mike Clark/Daily Montana)

Kaitlin Price, a spokesperson for the Governor’s Office, said Gianforte is “committed to protecting Montana children from permanent, life-altering procedures until they are adults, mature enough to make such serious health decisions.”

When Gianforte initially vetoed the bill and asked the legislature to sign off on amendments he requested, he referred to gender-affirming care as “Orwellian Newspeak” that he said “masks its true nature of permanent, invasive, life-altering medical and surgical procedures.”

The lawsuit explains that the World Professional Association for Transgender Health and the Endocrine Society have each published standards of care for assessing, diagnosing and treating gender dysphoria for children that take into consideration whether the child has or has not started puberty.

For pre-pubescent children, no drugs, hormones or surgeries are recommended or provided. At the start of puberty, the standard of care if a child is diagnosed with gender dysphoria involves consideration of puberty blockers, which the lawsuit notes do not cause infertility and can be reversed – two things proponents of the law had repeatedly claimed to the contrary.

“Transgender youth who are denied this treatment are at a greatly increased risk of experiencing or continuing clinically significant distress, suicidal behavior, self-harm, and other serious and lifelong psychological harm as compared to their cisgender peers,” the lawsuit states.

Some, but not all, children experiencing gender dysphoria may qualify for hormone therapy after undergoing sessions with a mental health professional who confirms the diagnosis. But only if they have been told about the irreversible effects and side effects of treatment, if they and their parents have agreed to start the regimen, and if a medical expert in the field agrees it is a proper treatment with no medical contradictions, according to the lawsuit.

The puberty blockers and, in some cases, hormone therapy often have positive effects for a transgender child’s mental health, as they see themselves as the person they know themselves to be and can stop their bodies from maturing in ways that do not match the gender with which they identify, the lawsuit says. That mirrors what several medical professionals in the field told lawmakers at committee hearings on the bill.

Further, the lawsuit points out, the new law directly targets transgender children receiving puberty blockers and hormone therapy because the definitions of male and female in the bill allow cisgender people – those who identify with the gender they were assigned at birth – to receive the same treatments and for medical professionals to apply them without fear of punishment or civil action.

“The act is so damaging to the health and well-being of transgender adolescents that some of these adolescents’ families with the resources to do so have taken steps to uproot their entire lives to move out of Montana in light of the act,” the lawsuit says. “For many more, however, that devastating option is not available, so these families and youth will have no choice but to remain and endure the harms that the Act inflicts.”

Plaintiffs include trans teenagers, gender-affirming care providers

Scarlet van Garderen, 16, of Belgrade, will be a senior next year and is a member of several school bands, color guard, and speech and debate teams. She wants to attend Montana State University after high school, according to the lawsuit.

People protested the House Speaker’s not letting Rep. Zooey Zephyr, D-Missoula, speak on the House floor during a rally outside the Capitol on Monday, April 24 2023. (Photo by Blair Miller, Daily Montanan)
People protested the House Speaker’s not letting Rep. Zooey Zephyr, D-Missoula, speak on the House floor during a rally outside the Capitol on Monday, April 24 2023. (Blair Miller/Daily Montanan)

She came out as transgender to a friend and then her parents in the spring of 2021, and over the next several months started to see a therapist, then an endocrinologist, and was prescribed puberty blockers and then hormone therapy last summer after turning 16, according to the lawsuit. She legally changed her name in December.

According to the lawsuit, she had been withdrawn and stayed mostly in her room before she began the treatments. But afterward, according to her parents and the lawsuit, the treatments led to a “night and day” difference that her parents worry will be undone if the law takes effect and she is forced to go through puberty.

“The only treatment we have found to be effective and give our daughter hope again is hormone therapy. The difference we have experienced is night and day and there is no going back,” Scarlet’s mother, Jessica van Garderen, said in a statement. “Taking away this crucial medical care is inhumane and a violation of our rights. We will fight this law for our daughter and every other family whose rights are being trampled.”

The other teenage plaintiff, Phoebe Cross, is 15 and finishing up his first year of high school, where he also plays in the symphonic band and participates on the speech and debate team. He testified against the bill during a House Judiciary Committee hearing in March.

The lawsuit says Cross has believed he was male since preschool, tried to conform with being female in elementary school, and started experiencing gender dysphoria and mental health concerns in middle school – including suicidal ideations and attempts. He cut his hair, started wearing more traditionally male clothing and a chest binder in eighth grade, after which his parents saw noticeable positive changes, the lawsuit says.

A few months after undergoing a mental health crisis that resulted in emergency treatment in January 2022, he started seeing a nurse and therapist, was diagnosed with gender dysphoria, and they started discussing treatment options. In September, he was prescribed testosterone, and the lawsuit says while he continues to see a therapist, nurse practitioner and psychiatrist, he is more positive, has less depression and is more comfortable with his appearance, according to the suit.

It says his parents have seen “immense growth” in his confidence and “hope for his future in a way that he did not have before he received gender-affirming care.”

“Just living as a trans teenager is difficult enough; the last thing me and my peers need is to have our rights taken away,” Cross said in a statement. “There were many things I hoped my elected officials would achieve, this regression in human rights is not one of those things. The blatant disrespect for my humanity and existence is deeply unsettling.”

Hodax and Mistretta each have years of qualified experience providing gender-affirming care and have worked with hundreds of patients from all parts of Montana, according to the lawsuit. Both attest to the positive experiences they have seen from their work.

“Dr. Hodax is not aware of any of her patients who have regretted initiating gender-affirming care,” the lawsuit says.

But each say they are likely to give up practicing in Montana if the new law takes effect because their medical licenses could be at risk and because they could face civil lawsuits from either former patients or the state attorney general under the law.

The suit says that Mistretta has already seen harm caused by the law even though it is not yet in effect.

“Several of her patients and their families have told her that, if the cct takes effect, they may need to leave the state in order to obtain this life-saving medical care,” the lawsuit says. “She has seen how even discussing the loss of gender-affirming care can cause so much discomfort, pain, fear, and anxiety in her patients that she must seriously consider the most appropriate time and manner to initiate the discussion to minimize its negative consequences to their health and wellness.”

Plaintiffs: SB99 ‘passed to express antipathy' toward transgender people’

The lawsuit claims the law violates several sections of the Montana Constitution surrounding equal protection under the law, parental rights, the right to privacy, the right to seek health, the right to dignity, and the freedom of speech and expression.

It also claims the law does nothing to compel state interest and discriminates against transgender children because they are not afforded the same treatments that cisgender people can still receive should the law take effect.

“These restrictions, only affecting transgender people, serve no legitimate purpose. They do nothing to protect the health or well-being of minors,” the lawsuit says. “To the contrary, they gravely threaten the health and well-being of transgender adolescents by denying them access to lifesaving care, and evidence an intent to discriminate against transgender people.”

The lawsuit further calls out by name several Republican lawmakers – including bill sponsor Sen. John Fuller, Sen. Daniel Emrich, Sen. Theresa Manzella, Rep. Kerri Seekins-Crowe, and Sen. Greg Hertz – for comments they made about transgender people, gender-affirming care, and the bill during committee and floor discussions.

It notes that House Speaker Matt Regier, R-Kalispell, stopped acknowledging Rep. Zooey Zephyr, a transgender Democratic lawmaker from Missoula, for her comments that Republicans would have blood on their hands for passing the governor’s amendments to SB99, which led to protests and her eventual censure and prohibition from the House floor.

“The Legislature failed to offer any legitimate public purpose for the act, and none exists,” the suit says. “The act was passed to express antipathy toward and to harm transgender people.”

The attorneys for the plaintiffs are asking a judge to declare the law unlawful and unconstitutional, to permanently enjoin the law from being enforced, and for attorney’s fees and costs. The lawsuit did not appear on any Missoula County District Court dockets on Tuesday afternoon.

Attorneys for the ACLU and Lambda Legal said they were confident they would prevail in the challenge.

“This law represents government overreach on steroids,” said Lambda Legal Senior Counsel Peter Renn. “The families targeted here have worked closely and carefully with qualified healthcare professionals to access the care they need. It is reprehensible that politicians would barge into exam rooms to rip away life-saving treatment, in total defiance of science and medicine, after parents have finally found stability and hope for their children’s future.”