Judge blocks bill to stop transgender youth from gender-affirming care

Missoula District Court Judge finds bill likely violates constitutional rights

By Keila Szpaller DAILY MONTANAN

Youth who are transgender are free to continue receiving gender-affirming medical care in Montana.

Wednesday, a Missoula County District Court judge granted plaintiffs’ request for a preliminary injunction against Senate Bill 99, which made it illegal for young people who are transgender to receive gender-affirming care.

Although Judge Jason Marks said his findings are “not binding at trial,” he found SB 99 likely discriminates based on a person’s status as transgender and also found it likely tramples on the right to privacy guaranteed in the Montana Constitution.

“If SB 99 goes into effect, minors experiencing gender dysphoria in Montana will be denied access to gender-affirming care,” the order said.

“Plaintiffs have demonstrated that Youth Plaintiffs — and other minors in Montana experiencing gender dysphoria — are at risk of facing severe psychological distress if they are blocked from receiving such care.”

Gender dysphoria is a diagnosable condition in which a person’s gender identity is at odds with their sex at birth, and it can lead to “clinically significant distress,” including depression and suicide attempts.

The law also said health care professionals could face discipline and have their licenses suspended if they violate the law.

The defendants had argued in part the law was meant to protect youth, but the judge said if that was the case, it would have blocked treatments for all youth, not just youth who are transgender.

As such, the judge found SB 99 likely discriminates based on transgender status. He said the Declaration of Rights in the Montana Constitution guarantees that everyone has equal protection of the laws, and privacy also is a fundamental right.

The Montana Legislature passed SB 99 in its 2023 session. In the order, the judge reviewed the legislative record, and he said it is “replete with animus toward transgender persons” and statements of personal, moral or religious disapproval.

The order noted a remark from state Sen. Theresa Manzella, R-Hamilton, who said, “you cannot change your sex” because “the Creator has reserved that for Himself.” It also cited bill sponsor Sen. John Fuller, R-Kalispell, objecting to providing transgender people with gender-affirming hormones because he believed “it was not ‘natural.’”

In May, plaintiffs, including a couple of transgender youth receiving care, their parents, and medical providers, sued the State of Montana and other defendants, alleging in part the law violated their constitutional rights to equal protection and privacy.

The law was set to take effect Oct. 1, but the order blocks it until the judge makes a final ruling after trial. The order also asks the parties to file a proposed scheduling order, including the number of days they will need at trial.

In support of SB 99 in court, defendants had argued some people experience negative effects of gender-affirming care, and in his order, the judge acknowledged that argument.

However, the order said the youth plaintiffs in the lawsuit had shown they would “suffer irreparable injury” if they lose access to such care,” including an increased risk of suicidality. It also said the argument “does not diminish the irreparable harm caused by likely constitutional violations.”

The order found the plaintiffs are likely to succeed on the merits; the law likely violates at least two constitutional protections, equal protection and privacy; and the law doesn’t serve its “purported compelling government interest” of protecting minors.

Marks said both parties agree the government has a compelling interest in the physical and psychosocial well-being of minors. So a question in the lawsuit is whether SB 99 serves that interest. Defendants argue it does, but plaintiffs argue it harms them.

Plaintiffs are represented by the ACLU of Montana, ACLU Foundation, Lambda Legal Defense and Education Fund, and Perkins Coie.

In the order, the judge said a review of the legislative record does not support the argument that minors are getting pressured to receive “harmful medical care” or that SB 99 protects minors: “In fact, the evidence in the record suggests that SB 99 would have the opposite effect.”

Preventing care can worsen adolescents’ mental health and increase suicidality, the order said, citing an expert medical report in addition to testimony from the youth plaintiffs.

The order said “at this stage in the proceedings,” the court is relying on the World Professional Association for Transgender Health’s standard of care, endorsed by the American Medical Association, American Psychological Association, American Academy of Pediatrics, and others.

“These organizations agree that the treatments outlined are safe, effective for treating gender dysphoria, and often medically necessary,” the order said.

The judge said defendants argue the treatments associated with gender dysphoria come with risk, but he said risk is “inherent in the field of medicine.” In this case, he said it’s managed with a standard of care that includes seeing a qualified healthcare provider and discussing risks with a doctor and guardian.

The order also dismissed the defendants’ argument that treatments for transgender youth are “experimental,” given their general approval by the Food and Drug Administration, as the plaintiffs argued in court.

The judge pointed to another bill, Senate Bill 422, from the 2023 session as a counterpoint. (“The Court finds it fascinating that SB 99 and SB 422 were passed in the same legislative session.”)

SB 422 allows anyone, including a minor, to be eligible for experimental treatment with a recommendation from their health care provider, the order said.

It said SB 99 and SB 422 together authorize parents to give consent for their children to undergo experimental treatments regardless of efficacy or risk. It said the state can’t block them “unless the minor is transgender” and seeking treatment for gender dysphoria.

“The Court is forced to conclude that the purported purpose given for SB 99 is disingenuous,” the order said. “It seems more likely that the SB 99’s purpose is to ban an outcome deemed undesirable by the Montana Legislature veiled as protection for minors.”

The judge said the Montana Legislature had changed the standards for courts to grant preliminary injunctions, and he made his order in light of the update. The order noted a preliminary injunction is “an extraordinary measure.”

Statements from plaintiffs

Plaintiffs are represented by the ACLU of Montana, ACLU Foundation, Lambda Legal Defense and Education Fund, and Perkins Coie. The plaintiffs made the following statements Wednesday in response to the order:

The plaintiffs argue the law violates their rights under the Montana Constitution, including the right to privacy, equal protection and the right of parents to direct the upbringing of their children.  SB 99 was one of several laws considered and passed by the 2023 Legislature targeting transgender Montanans.

“Today’s ruling permits our clients to breathe a sigh of relief,” said Akilah Deernose, executive director of the ACLU of Montana.  “But this fight is far from over.  We look forward to vindicating our clients’ constitutional rights and ensuring that this hateful law never takes effect.”

“We are gratified the judge understood the danger of denying transgender Montana youth access to gender-affirming care as the challenge to this cruel and discriminatory law proceeds,” said Lambda Legal Staff Attorney Kell Olson. “Transgender youth in Montana will continue to thrive, and removing this looming threat to their well-being is an important step in allowing them to do so.”

“We are so thankful for this opportunity to protect trans youth, their families, and their medical providers from this baseless and dangerous law,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “While this fight is not over, every day that transgender Montanans are able to access this care is a critical and life-saving victory. We will never stop opposing this ban and all others like it until every transgender person has the care and support they need to thrive.”

The news release from the plaintiffs said federal district courts have blocked such bans in Arkansas, Alabama, Florida, Georgia, Indiana, Kentucky, and Tennessee. In August 2023, the Eleventh Circuit Court of Appeals allowed Alabama’s ban to take effect while a legal challenge against it proceeds. On September 1, the Sixth Circuit Court of Appeals heard arguments on lower court rulings blocking bans in Kentucky and Tennessee and will issue a ruling before September 30. 

In June 2023, a federal court in Arkansas struck down that state’s ban on gender-affirming care in the first ruling on the merits of such a law, finding it violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and First Amendment of the United States Constitution.