Montana Supreme Court Upholds Injunction, Allows Transgender Minors to Access Certain Healthcare Procedures
The state failed to demonstrate that access to hormone therapies and other treatments presents a bona fide risk to minors, the Court wrote in a Wednesday morning decision
By Denali Sagner
Transgender minors in Montana will continue to have access to certain healthcare procedures following a decision issued Wednesday morning by the Montana Supreme Court.
The Supreme Court upheld a September 2023 injunction granted by Missoula County District Court Judge Jason Marks that temporarily blocked Senate Bill 99, a state law that bars transgender minors from accessing medical procedures including hormone treatment, gender-affirming surgeries and puberty blockers. The law also imposes consequences on physicians who provide such healthcare procedures, including possible medical license suspensions. The bill was introduced by Sen. John Fuller, R-Kalispell.
The plaintiffs behind the lawsuit challenging the ban include transgender youth, their parents and medical professionals who provide the prohibited forms of treatment, claiming the law violated Montana’s express constitutional right to privacy.
In the 41-page decision issued by the Supreme Court, the court wrote that the Montana Constitution’s right to privacy outlined in the 1999 Armstrong v. State ruling protects private medical decisions made between an individual and their healthcare provider from infringement by the state without a compelling state interest. While the state has a compelling interest to safeguard the health and wellbeing of Montana’s minors, the court wrote, the state failed to make a preliminary case that Senate Bill 99 was narrowly tailored to serve that interest.
Rather, the court wrote, the state did not demonstrate that the proscribed treatments “present a bona fide health risk to minors,” given that many of the procedures outlined in the bill, including gender-affirming surgery, are rarely recommended for individuals under 18.
“The statute at issue here prevents a wide range of treatment even when such treatment is determined, in the judgment of a medical professional working with their patients, to be in the patients’ best interest and given with informed consent,” the decision states.
Fuller, the bill’s sponsor, told the Beacon on Wednesday, “It’s once again the extraordinary partisanship of the Montana state Supreme Court. The idea that they can refuse to uphold a bill that protects children from being sterilized and mutilated is absolutely egregious.”
The Supreme Court upheld the District Court’s injunction, which temporarily blocks the law until a full trial takes place. The Supreme Court noted that both parties “will have the opportunity during the merits proceeding for full development of the record,” where their experts can offer insight on new research and argue the merits of new developments in the case law.
Justice Beth Baker wrote the Court’s decision, and Justices Mike McGrath, Laurie McKinnon, Ingrid Gustafson, Dirk Sandefur and James Jeremiah Shea concurred.
Justices Laurie McKinnon and Ingrid Gustafson wrote that the Court’s decision could have gone further to address plaintiff’s equal protection claim. Writing a concurring opinion, McKinnon wrote that while the Court has limited bandwidth to consider legal merits during an injunctive hearing, the justices should have articulated that discrimination on the basis of transgender status is sex discrimination, which requires strict scrutiny.
McKinnon wrote that ignoring the question of sex discrimination “is not an act of judicial restraint or deciding the case narrowly,” but rather is an “unjustifiable avoidance of a cornerstone question,” which, unanswered, will create further litigation and delay the resolution of the issue for transgender individuals seeking time-sensitive medical care.
Justice Jim Rice concurred in part and dissented in part, writing that while plaintiffs succeeded in arguing that Senate Bill 99 should be enjoined, one provision of the law that prohibited the use of Medicaid funding for such procedures should have taken effect.
Rice wrote that “both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet” and that the ultimate outcome of the issue “must be based on advancing medical science and law in regard to a serious concern over minors receiving this treatment.”
The Montana Supreme Court ruling arrived a week after the United State Supreme Court considered Tennessee’s ban on gender-affirming healthcare procedures for minors. The court seems likely to uphold the state’s ban and is expected to make a decision by next summer.
Fuller said the Tennessee bill is nearly identical to his bill passed in the Montana Legislature and said Wednesday’s ruling illustrated “how far off base the Montana Supreme Court is.”
Senate Bill 99 brought national attention to Montana last year when Rep. Zooey Zephyr, D-Missoula, the state’s only transgender female lawmaker, was barred from the House floor following her comments that legislators who supported the proposal would “see the blood on [their] hands.”
Montana is one of 26 states that have banned certain healthcare procedures for transgender minors.
The full decision can be read below.