HELENA, MT — Earlier today, the Montana Supreme Court ruled that SB 99, a 2023 Montana law that categorically bans life-saving gender-affirming care for transgender youth, is likely unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. This ruling will allow Montana communities and families to continue accessing medical treatments for transgender minors with gender dysphoria.
“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” said Phoebe Cross, a 17-year-old transgender boy. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”
“Fortunately, the Montana Supreme Court understands the danger of the state interfering with critical healthcare,” said Lambda Legal Counsel Kell Olson. “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.”
“We are so thankful for this opportunity to protect trans youth, their families, and their medical providers from this baseless and dangerous law,” said Malita Picasso, Staff Attorney for the ACLU’s LGBTQ & HIV Project. “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.”
“Today’s ruling permits our clients to breathe a sigh of relief,” said Akilah Deernose, Executive Director of the ACLU of Montana. “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.”
The Court found that the Plaintiffs 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. [T]he 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.
On December 4, the Supreme Court of the United States heard oral arguments 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, insulating transgender adolescents, their families, and health care providers from any potential negative outcome at the U.S. Supreme Court.
Today’s decision from the Supreme Court of Montana can be found here
