The Montana Supreme Court on Wednesday affirmed a lower court ruling that temporarily blocked a state law prohibiting transition-related health care for minors.
The suit, which was filed by two transgender teens and their families, as well as two providers of transition-related care, will now go to trial before Missoula County District Court Judge Jason Marks, who initially blocked the law in September 2023.
The American Civil Liberties Union and Lambda Legal, an LGBTQ legal advocacy group, which are representing the teens and providers, said the decision was a victory for the state’s trans youths.
“Fortunately, the Montana Supreme Court understands the danger of the state interfering with critical healthcare,” Kell Olson, an attorney for Lambda Legal, said in a statement. “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.”
Chase Scheuer, press secretary for Montana Attorney General Austin Knudsen, said the office looks forward to “defending the case on its merits, which will include recent scientific developments ignored by this court.”
“The Supreme Court has abandoned Montanans once again to rule in favor of their out-of-state political allies,” Scheuer said in an emailed statement. “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.”
Doctors treat gender dysphoria — the distress that results when a person’s gender identity is in conflict with their gender assigned at birth — on a case-by-case basis, but minors who do pursue medical transition begin puberty blockers, which temporarily stop puberty, at its onset.
Montana’s Republican-controlled Legislature passed a law in April 2023 prohibiting health care providers from using puberty blockers, hormone therapy and surgery to treat minors with dysphoria. The law also prohibits Medicaid from covering such treatments for trans minors.
When Marks issued a preliminary injunction against the law last year, he wrote that it was likely unconstitutional and that “barring access to gender-affirming care would negatively impact gender dysphoric minors’ mental and physical health.”
He also noted that the same Legislature, which described puberty blockers and hormone therapy as “experimental,” had passed a law giving patients, including minors, the right to receive treatment with experimental drugs if they consent and the treatment is recommended by a health care provider, The Associated Press reported.
In upholding the injunction, Montana Supreme Court Justice Beth Baker wrote in the majority opinion that the Legislature “did not make gender-affirming care unlawful,” nor “did it make the treatments unlawful for all minors,” as minors can still receive the treatments for other reasons.
“Instead, it restricted a broad swath of medical treatments only when sought for a particular purpose,” Baker wrote, adding that 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.’”
All seven state Supreme Court justices agreed with the decision to uphold the injunction. Two issued a separate concurring opinion, arguing that the court should have made clear that discrimination based on transgender status is a type of sex discrimination prohibited by the equal protection clause of Montana’s Constitution. One issued a partial dissent, arguing that the court should’ve allowed the portion of the law prohibiting Medicaid coverage of trans care for minors to take effect, because “there is no current federal mandate for Medicaid funding of gender-affirming care.”
Montana is one of 26 states that has passed a law restricting transition-related care for minors, according to the Movement Advancement Project, an LGBTQ think tank. Montana garnered international headlines last year when state lawmakers were debating the law. State Rep. Zooey Zephyr, the first trans woman elected to Montana’s Legislature, was censured in a party-line vote after telling her colleagues that they would have blood on their hands if they supported the restriction on trans care.
The U.S. Supreme Court took up such restrictions for the first time last week, when it heard arguments over a similar law in Tennessee. It is expected to issue a decision this summer.
