Montana's Supreme Court shows how to deal with this anti-trans moment
An anti-trans vote in the U.S. House follows further anti-trans actions in the United Kingdom — but the Montana justices ruled to keep their anti-trans law blocked.
The Montana Supreme Court unanimously told everyone on Wednesday that their state’s ban on gender affirming-medical care for minors would stay blocked for now, thank you very much.
It was a concise, narrow, principled ruling that perhaps is most aggressive in that it showed how poorly pretty much everyone else is dealing with the bad-faith attacks on transgender people.
The challengers sued after Montana passed its ban, S.B. 99, in 2023, arguing that it violated two provisions of the Montana Constitution: Its equal protection provision and its privacy provision. A trial judge issued a preliminary injunction blocking the ban on both grounds in September 2023, as covered at Law Dork at the time.
Examining the right to privacy ruling, which receives strong protection under the Montana Constitution, the Montana Supreme upheld the preliminary injunction. Justice Beth Baker wrote for the court:
Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest. … SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents. The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.
Five of the Montana court’s other six members joined Baker’s opinion, with two of them arguing that the court also should have addressed the equal protection arguments in their opinion at this stage. The final member of the court agreed that the medical ban should remain blocked, but would have allowed another provision in the law to go into effect.
That ruling to keep the Montana ban blocked came hours before 81 Democrats in the U.S. House of Representatives, along with 200 Republicans, voted for passage of a bill that would restrict health coverage for trans children of service members. The 81 Democrats voted for the National Defense Authorization Act despite the fact that House Speaker Mike Johnson succeeded in getting the anti-trans measure inserted into what is always referred to as “must-pass” legislation.
The extremist speaker didn’t feel the need to take the NDAA’s “must-pass” nature seriously enough to keep his anti-LGBTQ obsessions out of the bill. Despite that, dozens of Democrats — presumably fearing being tagged as opposing service members more than they fear actually being anti-trans — voted for the bill with the amendment banning military health coverage of gender-affirming medical care for transgender minors “that could result in sterilization.”
Here is the vote, and here are the Democrats who voted for the bill:
Notably, Rep. Seth Moulton of Massachusetts — who faced protests following his anti-trans post-election comments — voted no on Wednesday.
The bill now goes to the Senate.
The House vote came hours after the United Kingdom indefinitely banned new prescriptions of puberty blockers outside of research, with a review not set until 2027. Such new prescriptions had already ban banned under an earlier enacted emergency measure.
I couldn’t help but note, in perhaps the clearest sign that these attacks are unrelated to actual medical concerns and are powered simply by anti-trans animus: The House military coverage ban would not affect puberty blockers, and the U.K. ban only affects puberty blockers.
All three actions, of course, came a week after the U.S. Supreme Court heard oral arguments over Tennessee’s ban on gender-affirming medical care for minors.
It was particularly interesting, in light of the forced-or-feigned confusion that we got from some of the justices in D.C. last week, to see how clearly and simply Baker could discuss on behalf of the Montana Supreme Court what’s going on here.
In describing how the district court did not abuse its discretion in concluding that the S.B. 99 challengers are likely to succeed on their privacy claim, Baker wrote:
[T]he District Court conscientiously weighed the State’s evidence in support of its argument that SB 99 sought to protect minors from harmful, experimental treatments. On this argument, the District Court examined the State’s evidence that the U.S. Food and Drug Administration (“FDA”) has not approved puberty blockers for use in treating gender dysphoria. … In response, Plaintiffs submitted evidence indicating that the treatments proscribed by SB 99 are well-studied and that once the FDA approves a drug generally, the agency permits health care providers to prescribe the drug for off-label use, which occurs frequently for many drugs.
The explicit privacy right, as well as an equal protection provision that has been held to provide more protection than its federal counterpart, certainly helped the plaintiffs’ case in Montana, to be sure, but that might ultimately be more of a criticism of the federal path than it is a reason to claim the case is “easier” in Montana.
The equal protection discussion — avoided by Baker since it was not necessary to keeping the injunction in place — was notable as well. In her concurring opinion, Justice Laurie McKinnon wrote for herself and Justice Ingrid Gustafson that the court should have addressed those claims now as well:
So, to be clear, the Montana court has its disputes as well.
For his part, Justice Jim Rice “concur[red] with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions,” but wrote separately to note the “changing legal landscape” and urged that “neither this decision from our Court nor the District Court’s decision should affect in any way the ultimate outcome, which must be based on advancing medical science and law in regard to a serious concern over minors receiving this treatment.” Rice also dissented on one point, arguing that he would have reversed the district court’s injunction against enforcement of a ban on public funding of gender-affirming medical care for minors.
Bottom line: Even the Montana justice least open to the claims believed the medical ban should remain blocked for now.
Things are moving quickly now.
Everyone should stop, take a moment, and think about what they’re doing — and why.
For some, their actions are much more telling than their words.
For others, like Speaker Mike Johnson, he is perfectly clear in his words. “This legislation includes House-passed provisions to restore our focus on military lethality and to end the radical woke ideology being imposed on our military by permanently banning transgender medical treatment for minors,” he said in part of a statement following the House vote on the NDAA.
While others talk around it, Johnson is providing the words that those silently siding with — or voting for — these anti-trans actions ultimately will need to answer for.
To start, senators must confront this — and stop it.
Montana! Of all places! Hope is sometimes as spontaneous as it is unexpected.
“For some, their actions are much more telling than their words.” But for the likes of Pious Mike Johnson, it’s more yelling than telling.