Montana Supreme Court blocks state law banning trans surgeries for kids
The Montana Supreme Court has affirmed a temporary block on a state law that prohibits cosmetic sex-change surgeries and puberty-blocking drugs for trans-identified minors.
In a decision released Wednesday, the state’s highest court upheld a lower court ruling blocking the enforcement of Senate Bill 99 while litigation over the measure continues to play out.
Justice Beth Baker authored the majority opinion, emphasizing the right to privacy protections offered in the state constitution and writing that “SB 99 proscribes lawful medications and procedures administered by competent and licensed health care providers.”
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“The record shows that the District Court did not manifestly abuse its discretion when it concluded that Plaintiffs presented a prima facie likelihood of success on their right to privacy claim,” wrote Baker.
“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.”
Baker wrote that the plaintiffs “demonstrated a likelihood of irreparable harm” by showing that “the most lasting and permanent forms of gender-affirming care are rarely performed on minors; that, without an injunction, minor patients would suffer severe psychological distress; and that SB 99 infringed on their fundamental right to privacy.”
Justice Jim Rice authored an opinion that concurred in part and dissented in part, saying that while he supported the temporary block of the law regarding the medical restrictions, “the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet.”
“The State has filed several notices of supplemental authority providing further national and international decisions recognizing growing concerns over the medical benefit of this treatment and the legitimate basis for state intervention,” wrote Rice.
“This small sampling is enough to highlight both the changing legal landscape and the gravity of the governing principle 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 believes the provision of the state law barring the Medicaid funding of trans treatments for minors should be allowed to take effect during the legal proceedings.
“[T]here is no current federal mandate for Medicaid funding of gender-affirming care,” he added. “Further, funding decisions fall within the Legislature’s primary constitutional duty and responsibility over spending decisions, and I believe they should be subject to rational basis review.”
The Montana chapter of the American Civil Liberties Union, which is helping to represent the plaintiffs in the litigation, released a statement Wednesday celebrating the injunction.
“Today’s ruling permits our clients to breathe a sigh of relief,” said ACLU of Montana Executive Director Akilah Deernose said in the statement.
“But the fight for trans rights is far from over. We will continue to push for the right of all Montanans, including those who are transgender, to be themselves and live their lives free of intrusive government interference.”
In late April 2023, Montana Gov. Greg Gianforte signed SB 99 into law. Also known as the Youth Health Protection Act, it barred doctors from performing genital mutilation or elective mastectomies on youth suffering from gender dysphoria or prescribing “harmful, experimental puberty blockers” to children.
American Principles Project President Terry Schilling said in a statement at the time that his organization saw the new law as a “strong step to defend Montana’s children and their families.”
“The transgender industry has taken another defeat. Despite their attempts to gaslight the country into believing that this dangerous medical malpractice is somehow ‘life-saving care,’ more and more states are seeing through the lies,” stated Schilling.
“In reality, these sterilizing drugs and mutilating surgeries are anything but necessary, and it is critical that we protect kids from being pushed down this damaging pathway that will have lifelong consequences.”
Shortly after the law was signed last year, a group of progressive organizations filed a lawsuit on behalf of two trans-identified minors and their families, as well as two medical providers.
In September 2023, days before SB 99 was to take effect, District Court Judge Jason Marks issued an injunction blocking enforcement of the law as the litigation continued.
Montana is among over two dozen states that have enacted policies to restrict sex-change operations and hormonal interventions for minors struggling with gender dysphoria.
