The Montana Supreme Court has issued a ruling today (Wednesday, Dec. 11) declaring that SB 99, a 2023 Montana law that categorically bans life-saving gender-affirming care for transgender youth, is unconstitutional under the Montana state constitution’s privacy clause.
The privacy clause prohibits government intrusion on private medical decisions. Lambda Legal applauded the decision, saying this ruling “will allow Montana communities and families to continue accessing medical treatments for transgender minors with gender dysphoria.”
Phoebe Cross, a 17-year-old trans boy, said, “I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids. Just living as a trans teenager is difficult enough; the last thing me and my peers need is to have our rights taken away.”
Lambda Legal Counsel Kell Olson said the ruling shows that “the Montana Supreme Court understands the danger of denying transgender Montana youth access to gender-affirming care. 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.”
Just living as a trans teenager is difficult enough; the last thing me and my peers need is to have our rights taken away.”
Trans teen Phoebe Cross
Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project, added, “We are so thankful for this opportunity to protect trans youth, their families and their medical providers from this baseless and dangerous law. Every day that transgender Montanans are able to access this care is a critical and life-saving victory. We will never stop fighting until every transgender person has the care and support they need to thrive.”
And Akilah Deernose, executive director of the ACLU of Montana, said the court’s decision “permits our clients to breathe a sigh of relief,” but added the warning that “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.”
The Montana Supreme Court found that the plaintiffs in the case were likely to succeed on the merits of their privacy claim, holding: “The Legislature did not make gender-affirming care unlawful. Nor did it make the treatments unlawful for all minors. Instead, it restricted a broad swath of medical treatments only when sought for a particular purpose.
“The record indicates that provider plaintiffs, or other medical professionals providing gender-affirming care, are recognized as competent in the medical community to provide that care,” the ruling continued. The “law puts governmental regulation in the mix of an individual’s fundamental right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider.”
Two justices filed a concurrence arguing that the court should also clarify that discrimination on the basis of transgender status is a form of sex discrimination prohibited by Montana’s Equal Protection Clause.
Plaintiffs in the case include Molly and Paul Cross and their 17-year-old transgender son Phoebe, Jane and John Doe joining on behalf of their 16-year-old transgender daughter and two providers of gender affirming care who bring claims on their own behalf and on behalf of their Montana patients.
This ruling comes in the wake of Dec. 4 oral arguments before the U.S. Supreme Court in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. Today’s decision by the Montana Supreme Court rests entirely on state constitutional grounds, a Lambda Legal press releases stressed, thus insulating transgender adolescents, their families and health care providers from any potential negative outcome at the U.S. Supreme Court.
Read today’s ruling here.
Find more information about the case here.