Montana Supreme Court Halts Ban on Transgender Health Care
The state's highest court finds a gender-affirming care ban violates Montanans' right to freedom from government interference.
The Montana Supreme Court upheld a temporary injunction blocking the state from enforcing its ban on gender-affirming care for transgender youth.
The unanimous ruling is historic, marking the first time that a state Supreme Court has found that a ban on gender-affirming care is likely unconstitutional.
On December 11, the court ruled that SB 99, a 2023 law categorically banning all transition-related medical interventions on minors, violates the Montana State Constitution’s privacy clause, which prohibits the government from interfering with private medical decisions.
With the law blocked, transgender youth will still be able to access medical treatments for gender dysphoria — provided that their personal care physician does not refuse transgender patients due to intimidation or fear of being prosecuted.
Several transgender teens, their families, and two medical providers filed suit last year to block the law, arguing that it violated the Montana constitution’s guarantee of medical privacy.
The plaintiffs also argued that it is discriminatory to ban certain types of treatments or interventions for transgender youth, while cisgender youth with other medical conditions can still receive those exact same treatments, such as puberty blockers or hormone therapy.
Because the only difference between those situations is the assigned sex at birth of the youth in question, the plaintiffs argue, the ban constitutes a form of sex-based discrimination.
A lower court judge blocked the measure from taking effect in September 2023, arguing that the law was “unlikely to survive any level of constitutional review” and noting that “barring access to gender-affirming care would negatively impact gender dysphoric minors’ mental and physical health.”
That judge also called into question lawmakers’ intent, calling the state legislature “disingenuous” in claiming to be concerned about protecting minors when they passed the law.
Following an appeal by Montana Attorney General Austin Knudsen, the Supreme Court sided with the plaintiffs, finding they were likely to succeed on the merits of their privacy claim.
“The Legislature did not make gender-affirming care unlawful. 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,” Justice Beth Baker wrote on behalf of the court.
“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,” she added. “[T]he 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.'”
Two other justices filed a concurring argument that the Supreme Court should also clarify that discrimination on the basis of transgender status is a form of sex discrimination prohibited by Montana’s Equal Protection Clause.
“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” Phoebe Cross, a 17-year-old transgender boy who is the lead plaintiff in the Montana case, said in response to the decision. “Just living as a trans teenager is difficult enough. The last thing me and my peers need is to have our rights taken away.”
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