Montana judge finds transgender care ban unconstitutional
A state district court judge in Missoula on Tuesday ruled that a 2023 state law banning many gender transition-related medical services for transgender minors is unconstitutional, prohibiting its enforcement.
The 59-page ruling from district court Judge Jason Marks found that Senate Bill 99, backed by Republicans largely along party lines during the legislative session two years ago, violates the Montana Constitution’s rights to privacy, equal protection and free speech.
The law had been temporarily enjoined before it was scheduled to take effect. The Montana Supreme Court upheld that block in 2024.
The court found that plaintiffs, including transgender teen Phoebe Cross and other minor patients, their parents and medical providers, successfully presented evidence that the law undermines their constitutional rights by curbing access to medical treatments for gender dysphoria, such as puberty blockers and hormones.
The ruling said state attorneys, meanwhile, failed to meet the legal burden of proof that SB 99 properly responded to a legitimate medical risk or was narrowly tailored to achieve the government’s interests.
“Defendants are unable to clearly and convincingly establish that a bona fide health risk exists. They have not put forth any evidence showing major medical organizations in the United States have changed their stance on gender-affirming medical care. Instead, they argue that no medical consensus exists on the benefits of gender-affirming care. This is the incorrect standard. The question is whether a medically acknowledged, bona fide health risk exists,” Marks wrote.
All parties agreed that the banned treatments, like all medical services, pose some degree of risk to patients, the judge found. But allowing the state to interfere in medical decisions because of the presence of any risk would be irrational, Marks noted. Similarly, he dismissed the state’s arguments that some medical professionals disagree about the proper course of care for gender dysphoria.
“If some disagreement among medical professionals were enough to create a medically acknowledged, bona fide health risk, every medical treatment would … be subject to state interference,” he ruled.
The decision referenced a long history of Montana court rulings supporting bodily autonomy and privacy in medical decision-making, many of which arose from litigation about abortion restrictions. Those rulings created and have reinforced a high bar for the state to interfere with medical care.
Marks specifically referenced the 1999 Montana Supreme Court ruling in Armstrong v. State that found abortion access is protected by the Constitution’s right of individual privacy.
“Importantly, the ‘legal standards for medical practice and procedure cannot be based on political ideology, but, rather, must be grounded in the methods and procedures of science and in the collective professional judgment, knowledge and experience of the medical community acting through the state’s medical examining and licensing authorities,’” the judge wrote, quoting Armstrong.
Marks also found that SB 99 unconstitutionally infringed on the free speech of medical providers by prohibiting the use of state funds to promote or advocate for the banned procedures. Among other provisions, the law would have barred physicians from referring a patient for gender transition-related treatment, even in other states.
“Therefore, the Court must find that SB 99 is a content-based regulation and invidiously discriminates on the basis of viewpoint,” the judge found. “This goes beyond any permissible regulation of conduct. It unconstitutionally bars providers from telling minors and their parents that gender-affirming medical care, which is endorsed and cited as authoritative by major medical associations in the United States for treating gender dysphoria, is an option.”
Representatives from the ACLU of Montana and Lambda Legal, civil rights groups that represented the plaintiffs in the case, celebrated the ruling in Tuesday evening statements.
Cross, the lead plaintiff, said he would “never understand” why lawmakers passed the law.
“It’s great that the courts, including the Montana Supreme Court, have seen this law for what it was, discriminatory, and today have thrown it out for good,” he said.
Press secretaries for Attorney General Austin Knudsen, whose office represented the state in the lawsuit, did not respond to a request for comment about the ruling. The state could appeal the decision to the Montana Supreme Court.
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This story was originally published by Montana Free Press and distributed through a partnership with The Associated Press.