Attorneys from the American Civil Liberties Union (ACLU) and the state of Montana presented arguments in Missoula County District Court on Monday regarding whether or not the court should temporarily block the enforcement of a law that would ban gender-affirming healthcare for transgender minors before it goes into effect on Oct. 1.
Plaintiffs in Van Garderen et al v. State of Montana include two transgender teenagers — Scarlet Van Garderen and Phoebe Cross — as well as their parents, medical providers who care for transgender patients, and two anonymous parents on behalf of a third transgender teenager. Named defendants include the state of Montana, Gov. Greg Gianforte, Attorney General Austin Knudsen, the Montana Board of Medical Examiners, Board of Nursing, Department of Public Health and Human Services (DPHHS) and DPHHS Director Charlie Brereton.
District Court Judge Jason Marks is presiding over the bench trial.
During the preliminary injunction hearing, ACLU attorney Malita Picasso outlined numerous legal issues with Senate Bill 99, arguing that it violates Montana’s strict statutes around privacy, equal protection and parental rights. The bill, which was brought during the 2023 legislative session by Sen. John Fuller, R-Kalispell, would bar doctors from offering a wide range of medical treatments to transgender minors, including hormone therapy, puberty blockers and gender affirmation surgery.
“SB 99 cannot survive strict scrutiny because it is over-inclusive, under-inclusive, and directly undermines its own purported interest,” Picasso said, arguing that while the state claims the law will protect children, it will rather further the suffering of transgender minors by “stripping them of the only safe and effective treatment for their gender dysphoria.”
Joined in the Missoula courthouse by a number of plaintiffs, Picasso told the stories of Scarlet Van Garderen and Phoebe Cross, as well as the third, unnamed transgender teenager, describing anxiety, depression and suicidal thoughts experienced by the teenagers that did not cease until they were able to seek medical care that helped them to affirm their gender identity.
Picasso also argued that while federal courts have delivered mixed precedent on the extent to which privacy protections guarantee a right to specific medical procedures, Montana is home to “one of the strongest fundamental rights to privacy in the country.”
“There’s no question that SB 99 deprives [transgender minors] of their right to make decisions about their own bodily integrity,” the ACLU attorney said.
Representing the state and named defendants, Assistant Attorney General Michael Russell described gender-affirming care as a set of “life-altering” and “irreversible” procedures being pushed on “impulsive” children, echoing many of the themes harnessed by proponents of Senate Bill 99 during the legislative session.
“The child will be trapped in an identity that was formed and frozen in childhood,” Russell said of adolescents who undergo gender-affirming healthcare, arguing that they “cannot possibly consent” to such procedures.
Russell challenged assertions that gender-affirming healthcare is safe, effective and evidence-based, calling the research cited by plaintiffs “poor quality research masquerading as high quality research.”
“There’s profound medical uncertainty that exists in all aspects of gender affirming care,” Russell said.
The assistant attorney general cited studies that show high rates of “desistance,” or people who once identified as transgender ceasing to identify as such after a certain period of time. Russell said that “a significant majority” of transgender people desist, arguing that the state has a compelling interest to ban the “experimental” medical procedures for children.
The studies cited by Russell and other opponents of gender-affirming healthcare have been challenged by medical professionals and researchers due to considerable methodological inconstancies.
Russell also argued that state governments “have an abiding interest in protecting the welfare of children” and that “a fundamental right is not immune from state regulation.”
In her rebuttal, Picasso said that the state failed to address “the very high standard that the court is to apply” when considering Montana’s strict privacy standards.
“The defendants are relying heavily on federal case law,” Picasso argued, saying that more immediate state precedent has repeatedly affirmed Montanans’ right to privacy, namely Armstrong v. State, a 1999 Montana Supreme Court case that upheld the right to an abortion on the grounds of the Montana Constitution’s clear provisions around privacy.
Picasso also refuted the state’s claims that irreversible gender affirmation surgeries are being performed on pre-pubescent children and said that in the vast majority of cases, pre-pubescent transgender children go through “social transitioning” before any medical interventions are considered.
Marks told plaintiffs and defendants that he expects to have a ruling next week, and acknowledged that his ruling will likely be challenged by the disaffected party. If Marks rules in favor of the plaintiffs, Senate Bill 99 will be temporarily blocked from going into effect until the state courts can hold a full trial on the legality of the bill.
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