Montana court blocks law banning minors' gender-affirming medical care

The preliminary decision was based on the Montana Constitution.

Montana’s law banning gender-affirming medical care for minors, S.B. 99, likely violates Montana’s Constitution, a state judge ruled Wednesday, granting the law’s challengers a preliminary injunction blocking enforcement of the law.

“[T]he legislative record does not support a finding that S.B. 99 protects minors,” Judge Jason Marks, of the District Court in Missoula, wrote. “In fact, the evidence in the record suggests that S.B. 99 would have the opposite effect.”

In one of the most direct opinions laying out the stakes for transgender minors and questioning the arguments made by state officials for passing such bans, Marks found that the law likely violates the equal protection and privacy rights of transgender youth in Montana.

“The Court is forced to conclude that the purported purpose given for S.B. 99 is disingenuous. It seems more likely that the S.B. 99’s purpose is to ban an outcome deemed undesirable by the Montana Legislature veiled as protection for minors,” noting that the legislative record was “replete with animus toward transgender persons” and misstatements about the treatments banned by the legislation.

Marks issued the preliminary ruling after a hearing that took place earlier this month, noting that Montana’s Constitution provides heightened individual protection under its Equal Protection Clause beyond that provided by its federal counterpart and “one of the most stringent protections of its citizens right to privacy in the United States.”

Marks preliminarily enjoined enforcement of the law and ordered the parties, within the next three weeks, to submit a briefing schedule for a full trial.

S.B. 99 was ultimately passed and signed into law in April, leading families with transgender children and medical providers who treat them to sue in May. Under the law, gender-affirming medical care — surgery, puberty blockers, or hormones — is banned for anyone younger than 18. As with other laws, the Montana law specifically notes that the very treatment banned for transgender children in sections (1)(a) and (1)(b) is allowed for others in (1)(c):

Among the other provisions, Montana’s law threatens medical providers’ licenses — requiring at least a one-year suspension for any violation of the law. It also bans Montana medicaid and the state children's health insurance programs from covering any such care. Private lawsuits are authorized under the law “if the medical treatment or the after-effects of the medical treatment result in any injury, including physical, psychological, emotional, or physiological harms, within the next 25 years,“ as are investigations and lawsuit from the state’s attorney general.

The challengers — supported by lawyers from the ACLU of Montana, ACLU, Lambda Legal, and Perkins Coie LLP — argued that the law classified adolescents in Montana based on whether they are are transgender or not, and that the adolescents are otherwise similarly situated — key to arguing that state classifications are unconstitutional.

In defending the law, the state countered that “[g]ender dysphoric minors who seek experimental treatment to transition suffer from a psychological condition and are not similarly situated to minors who need hormonal treatments due to a physical disorder in sexual development.”

Marks was not having it.

After reviewing the evidence and arguments, he concluded on Wednesday, “Transgender minors seeking the treatments proscribed by SB 99 do so for medical reasons — to treat gender dysphoria — and based on the advice offered by their healthcare providers.”

He concluded: “Defendants' argument that is premised on a distinction between physical conditions and psychological conditions fails as it relates to whether classes are similarly situated because both are medical conditions and because gender dysphoria does not solely relate to mental health, it also relates to physical health.”

With the classification is settled, Marks went on to consider what level of scrutiny to apply.

Noting the Montana Constitution’s heightened protections, Marks found that strict scrutiny — the highest level of scrutiny laws face under such challenges — applied. He did so by concluding that “the Court is unpersuaded by Defendants’ argument that S.B. 99 does not discriminate based on sex simply because it proscribes both minor females and minor males from receiving gender-affirming care.” Citing the U.S. Supreme Court’s Bostock v. Clayton County decision, Marks wrote, “under S.B. 99, a minor’s sex plays an ‘unmistakable and impermissible role’ in the determination of who may receive certain treatments.”

As to equal protection, “S.B. 99 facially burdens this fundamental right by denying transgender minors from seeking medical treatments available ot their cisgender counterparts.”

As to privacy, “S.B. 99 burdens this fundamental right by limiting Youth Plaintiffs' ability to pursue certain medical treatments and by limiting their ability to make medical decisions in concert with theirguardians and healthcare providers.“

With that established, the test asks whether the law advances a “compelling state interest” and is “narrowly tailored” to that interest.

This part of the opinion started out similar to many others.

“The parties agree that the government has a compelling interest in the physical and psychosocial well-being of minors. Accordingly, this analysis turns on whether S.B. 99 serves that interest,” Marks wrote.

While most of the cases have turned on the tailoring of the laws to the asserted state justification, Marks — applying strict scrutiny — went in a slightly different direction.

Examining the state’s argument that the goal of the law is to “protect” minors and their families “from any form of pressure to receive harmful, experimental puberty blockers and cross-sex hormones and to undergo irreversible, life-altering surgical procedures prior to attaining the age of majority,” Marks wrote, “A review of the legislative record does not support a factual finding that minors in Montana are being faced with pressure related to receiving harmful medical care.”

Marks concluded that “these treatments are the accepted standard of care for treating gender dysphoria.“ He also specifically responded to claims about U.S. Food and Drug Administration approval made by Judge Jeffrey Sutton in his opinion allowing Tennessee’s similar ban to go into effect during the state’s appeal there.

As Marks wrote, “the treatments proscribed by S.B. 99 remain the accepted standard of care, even when utilized in an ‘off-label’ way: they are ‘well documented and studied, through years of clinical experience, observational scientific studies, and even some longitudinal studies.’”

Relatedly, Marks also focused in on another bill passed by in Montana, “An Act Expanding the Right to Try Act” (S.B. 422), which makes Montanans eligible to “investigational” treatment of any “drug, biological product, or device“ that has successfully passed phase 1 of a clinical trial and “remains under investigation in a United States Food and Drug Administration-approved clinical trial.” The law, Marks noted, “contemplates informed consent in the context of minors,” requiring a parent or guardian’s “written informed consent” to such “investigational” treatment.

“The Court finds it fascinating that S.B. 99 and S.B. 422 were passed in the same legislative session,” he wrote. Pointing out the inherent contradictions, Marks stated, “Read together, S.B. 99 and S.B. 422 authorize parents to give consent for their minor children to engage in experimental medical treatments, regardless of efficacy or risk, that cannot be blocked by the State unless the minor is transgender and seeking medical treatment for gender dysphoria in line with the recognized standard of care.”

With all of that, Marks reached his key conclusion:

He went on to find that, given the above analysis, the law would not likely pass any level of scrutiny and similarly likely violates privacy rights guaranteed by the Montana Constitution.

Considering the other factors for granting a preliminary injunction, Marks noted, “The risk of adverse effects to Youth Plaintiffs' health, including increased risk of suicidality, certainly outweighs the intangible harm the State will endure if it is enjoined from enforcing S.B. 99 and the status quo is maintained until a full trial on the merits is held.“

The ruling will last throughout any final decision at trial, unless the state appeals Wednesday’s ruling.