Montana Supreme Court blocks ban on gender-affirming health care for minors

The justices agreed with a lower court judge who found the law likely violates the state’s constitutional right to privacy

HELENA, Mont. — A Montana law banning gender-affirming medical care for transgender minors will remain temporarily blocked, the state Supreme Court ruled Wednesday, after justices agreed with a lower court judge who found the law likely violates the state’s constitutional right to privacy.

The case against the Montana law now goes to trial before District Court Judge Jason Marks in Missoula.

“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” Phoebe Cross, a 17-year-old transgender boy and lead plaintiff, said in a statement. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”

The attorney general’s office said it looks forward to defending the law, with a spokesperson noting there are recent scientific and legal developments that support lawmakers’ postion. This court decision comes as the British government on Wednesday banned puberty blockers for children with gender dysphoria, citing an unacceptable safety risk.

The U.S. Supreme Court earlier this month heard arguments over Tennessee’s ban on puberty blockers, hormones or surgery for transgender minors, with observers saying it appeared the justices were likely to uphold the ban. The Biden administration had sought to block similar bans that exist in more than half the states.

“Because Montana’s constitutional protections are even stronger than their federal counterparts, transgender youth in Montana can sleep easier tonight knowing that they can continue to thrive for now, without this looming threat hanging over their heads,” said Kell Olsen, an attorney for Lambda Legal.

Legislative debate over Montana’s bill drew national attention in the spring of 2023 after Republicans punished Democratic Rep. Zooey Zephyr — the first transgender woman elected to the state’s Legislature — for admonishing lawmakers who supported the bill.

Marks blocked the law late lasg year, just days before it was to take effect. He agreed with transgender young people, their families and health care providers that the law is likely unconstitutional and would harm the mental and physical health of minors with gender dysphoria, rather than protect them from experimental treatments, as supporters claim.

The judge noted the same Republican-controlled Legislature passed a law saying patients, including minors, have a right to receive treatment for other issues with experimental drugs — as long as it’s recommended by a health care provider and they give consent.

Marks said he could only conclude the Legislature’s stated intent in passing the law was “disingenuous,” and it seemed more likely its purpose is to “ban an outcome deemed undesirable by the Montana Legislature, veiled as protection for minors.”.

Montana is one of at least 26 states that have passed bans on gender-affirming medical care for minors and most face lawsuits. Some bans have been temporarily blocked by courts, while others have been allowed to take effect. Fifteen states have enacted protections for gender-affirming medical care for minors.

In Montana’s case, transgender youth argued the law would ban them from continuing to receive gender-affirming medical care, violating their constitutional rights to equal protection, the right to seek health care and the right to dignity. The state Supreme Court upheld the injunction based on the right to privacy.