Montana Court Blocks Transgender Healthcare Ban

A Missoula District Court granted a preliminary injunction against Senate Bill 99, a state law brought by Sen. John Fuller, R-Kalispell, that would bar transgender minors from accessing a number of medical treatments

By Denali Sagner
The Montana State Capitol building in Helena. Beacon file photo

Transgender minors in Montana will continue to be able to seek gender-affirming healthcare after a District Court judge issued a preliminary injunction blocking the enforcement of Senate Bill 99.

Missoula County District Court Judge Jason Marks on Wednesday morning issued an order temporarily blocking a new state law that would ban transgender minors from seeking specific medical procedures in order to treat their gender dysphoria. Such treatments include hormone therapy, puberty blockers and gender-affirming surgical procedures. In a 48-page document granting the preliminary injunction, Marks wrote that Senate Bill 99 infringes on transgender minors’ fundamental rights to privacy and violates Montana’s stringent equal protection guarantees.

The Court finds that SB 99 likely violates Montana’s Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted ‘medically-acknowledged, bonafide health risk[s].’

Missoula County District Court Judge Jason Marks

Plaintiffs in the lawsuit against the state include Scarlet Van Garderen and Phoebe Cross, two transgender teenagers, as well as Van Garderen and Cross’ parents, medical providers who care for transgender patients, and two anonymous parents on behalf of a third transgender teenager. Attorneys from the American Civil Liberties Union (ACLU), Lambda Legal, Perkins Coie and the ACLU of Montana are representing plaintiffs.

Named defendants are 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.

During a Sept. 17 court hearing — as well as in thousands of pages of legal filings and expert testimony collected in recent weeks — plaintiffs and their attorneys alleged that Senate Bill 99 presented six distinct constitutional violations.

Plaintiffs argued that Senate Bill 99 “unconstitutionally burdens the rights of transgender minors” to receive specific care while allowing the same treatments for cisgender minors; violates parents’ “right to make decisions concerning the care of their children”; violates patients’ rights to privacy by limiting their ability to make medical decisions and “intruding on the private relationship between a patient and their medical provider”; burdens patients’ right to seek medical care; violates patients’ fundamental human rights by “threatening and demeaning the humanity and identity of transgender individuals”; and burdens freedom of speech by “restricting the rights” of doctors to provide treatments barred by the bill.

Defendants argued that the bill prevents minors from undergoing experimental, dangerous medical procedures, and that protecting children is a compelling interest of the state. Defendants also argue that the bill does not infringe on fundamental rights as it prevents all minors, “regardless of sex,” from pursuing certain medical treatments “for the purpose of gender transition.”

Marks wrote that “the Court is unpersuaded by Defendants’ argument that SB 99 does not discriminate based on sex” and that “the legislative record does not support a finding that SB 99 protects minors.”

Sen. John Fuller, R-Kalispell, the lawmaker who sponsored Senate Bill 99 in the 2023 legislative session, told the Beacon that “the ruling in this case is a ruling against the children of the state of Montana.”

Then candidate John Fuller in Kalispell on Nov. 8, 2022. Hunter D’Antuono | Flathead Beacon

“I find it interesting that they’re using all kinds of peripheral arguments to justify mutilating and endangering the future health and welfare of a child. That is mental gymnastics,” Fuller said.

Fuller said he was “not surprised” to see such a ruling from the Missoula District Court judge and that he expects the decision to be appealed to the Montana Supreme Court.

“It’s going to be appealed to the Montana State Supreme Court, and once again the will of the people is in the hands of seven monarchs in black robes,” Fuller said. “Obviously, I hope for the best. I cannot speak for the judges.”

The 2023 legislative session ground to a halt in April when debates over Senate Bill 99 prompted Republican leadership to censure Rep. Zooey Zephyr, D-Missoula, one of two transgender state lawmakers, after her impassioned rebuke of the policy on the House floor.

Attorneys for the plaintiffs celebrated the decision, yet noted that this will not be the end of the road for Senate Bill 99.

“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,” Lambda Legal Staff Attorney Kell Olson said in a Wednesday press release. “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,” Malita Picasso, the ACLU staff attorney who presented the plaintiffs’ case at the Sept. 17 court hearing, said. “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.”

Emilee Cantrell, spokesperson for the Montana Attorney General’s Office, said in an email, “This is a preliminary matter at this point. We look forward to presenting our complete factual and legal argument to protect Montana children from harmful, life-altering medications and surgeries. Because of the irreversible and immediate harms that the procedures have on children we will be filing a notice of appeal today.”

The full court order can be found here.

Editor’s Note: This story has been updated to an include a comment from the Montana Attorney General’s Office.

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