Montana law restricting gender-affirming care for youth on hold

Posted at 11:44 AM, Sep 27, 2023
and last updated 2023-09-28 12:30:11-04

HELENA — A state district court judge in Missoula has put a hold on Montana’s new law restricting gender-affirming health care for transgender youth, ahead of a trial challenging its constitutionality. However, that decision is already set to be appealed.

After a hearing last week, District Judge Jason Marks issued a preliminary injunction Wednesday, stating that plaintiffs had made their case the law shouldn’t be allowed to go into effect as scheduled on Oct. 1.

“It is always in the public interest to prevent constitutional harms, and Plaintiffs’ hardships in the absence of a preliminary injunction –- e.g., losing access to medical care and possible mental and physical health crises – far outweigh any hardships placed on Defendants if the status quo is maintained until a full trial on the merits is held,” Marks said in his ruling.

“It is, of course, an enormous relief to our clients that are currently receiving care and dealing with the tremendous uncertainty of not knowing whether their care will be interrupted or delayed or what it's going to mean for their lives and their daily health,” said Kell Olson, a staff attorney for Lambda Legal, representing the plaintiffs.

SB 99, sponsored by Sen. John Fuller, R-Kalispell, passed the Legislature earlier this year and was signed by Gov. Greg Gianforte in April. It prohibits gender-affirming procedures, including hormone treatments and surgeries, for transgender people younger than 18 seeking to medically transition. It would threaten health care providers who do provide those treatments with a license suspension and legal liability.

Plaintiffs – including several transgender youth, their families and health care providers – sued the state over the law. Their attorneys said SB 99 violated the individuals’ right to medical privacy and their parents’ rights to choose treatment options for them, and that it discriminated against transgender youth because similar procedures remained legal for those not seeking to transition.

“The bigger question before the court is, does it make sense for the state to block all of this, care for anyone who's accessing it, and only for this reason, but still the same treatment for other people, for other reasons?” Olson said.

Attorneys for the Montana Department of Justice, defending the law, argued there is more disagreement about the effectiveness of gender-affirming care than the plaintiffs suggested. They said the Legislature had a legitimate interest in protecting minors, from what they argued could be long-term and irreversible health effects from these procedures.

Marks said, at this time, the state hadn’t shown enough justification that SB 99 served its expressed interest in protecting minors from “pressure to receive harmful medical treatments.” He acknowledged the state had presented competing medical evidence, but said the best time to fully evaluate the two sides’ claims and evidence would be in a trial.

In a statement, Emilee Cantrell, a spokesperson for the Department of Justice, confirmed they planned to appeal Marks’ decision to the Montana Supreme Court.

“This is a preliminary matter at this point. We look forward to presenting our complete factual and legal argument to protect Montana children from harmful, life-altering medications and surgeries,” Cantrell said. “Because of the irreversible and immediate harms that the procedures have on children we will be filing a notice of appeal today.”

Marks gave the parties 21 days to work on a proposed schedule for a trial. Olson said, at this time, there's no further information about when the trial might happen.

EDITOR'S NOTE: This story has been updated with additional quotes and more information about the upcoming trial.