SupCo says district court did not err in blocking law based on right to privacy in state constitution
By Blair Miller Daily Montanan
The Montana Supreme Court issued an opinion Wednesday that allows a lower court’s injunction blocking the 2023 law that bans gender-affirming care for minors to stay in place, agreeing with the court that the law on its face likely violates the right to privacy in the state constitution.
Now that the state’s appeal of the preliminary injunction, which has been in place since September 2023, has been resolved, the full case will continue to trial in Missoula County District Court to determine whether Senate Bill 99 is unconstitutional.
“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” one of the plaintiffs, Phoebe Cross, a 17-year-old transgender boy, said in a statement. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”
Six of seven justices signed on to the majority opinion, written by Justice Beth Baker. Justices Laurie McKinnon and Ingrid Gustafson wrote a concurring opinion in which they criticized the court for not deciding some of the state constitution’s equal protection clause claims at hand, including whether discrimination on the basis of transgender status constitutes sex discrimination.
Justice Jim Rice concurred that SB 99 should be enjoined, except for a portion that prohibits Medicaid funding for gender-affirming care since there is no current federal mandate that Medicaid fund such care.
Plaintiffs in the case include Molly and Paul Cross, of Bozeman, and their transgender son, Phoebe, and Jane and John Doe, who joined the suit on behalf of their 16-year-old transgender daughter. They also include two medical providers of gender-affirming care. Another plaintiff in the case was dismissed in September after turning 18, according to court filings.
Defendants include the State of Montana, Gov. Greg Gianforte, Attorney General Austin Knudsen, the boards of nursing and medical examiners, the Department of Public Health and Human Services and its director, Charlie Brereton.
The state appealed Missoula County District Court Judge Jason Marks’s decision to issue a preliminary injunction on the claims that the plaintiffs did not have standing to challenge the bill and that the district court had erred in issuing the preliminary injunction against the entire bill. In September 2023, Marks found that the plaintiffs were “at risk of facing severe psychological distress” if they were blocked from receiving gender-affirming care.
In response to the Supreme Court’s decision Wednesday, Gianforte, a Republican, said he was “deeply disappointed” the injunction was upheld pending the trial.
“Children who struggle with gender identity deserve love, compassion, and respect. They deserve no ridicule, animus, or seclusion,” the governor said in a written statement. “They are entitled to protection, not exploitation. While their young minds and bodies are still developing, they should not be subjected to experimental and permanent, life-altering medical and surgical procedures.”
During the district court hearing and in briefs, the plaintiffs submitted expert witness reports showing that the use of puberty-delaying medications and gender-affirming hormone therapy were World Professional Association for Transgender Health standards of care for treating gender dysphoria, and that surgery “is rarely recommended” under those same standards, the Supreme Court noted.
The bill, established as the “Montana Youth Protection Act,” bans the use of things like puberty blockers and surgeries, generally called “gender-affirming care” by medical professionals, for Montana youth experiencing gender dysphoria, a condition where a person feels their biological sex does not match their identity. The bill also would open medical professionals who perform any gender-affirming care outlined in the bill to potential discipline by the licensing board, including a one-year suspension of their license.
The measure also allows a parent or guardian of a child to sue a medical professional for damages and does not allow Medicaid or children’s health insurance program money to go back to families for reimbursement.
The court found the plaintiffs do have standing because the state had already conceded that Phoebe Cross had standing during the district court hearing, and precedent says that if one plaintiff has standing, a claim can proceed. Further, the court wrote, the medical-professional plaintiffs face a threat to their ability to practice medicine under the law, which the court said was a “concrete injury.”
On whether the district court erred in ordering a preliminary injunction based on the plaintiffs’ privacy claim under the Montana Constitution, the court agreed with the district court’s analysis that the Supreme Court’s 1999 finding in Armstrong vs. State applied.
“Though the State has a compelling interest in ‘safeguarding the physical and psychological wellbeing of a minor,’ a statute implicating their privacy rights must be narrowly tailored to serve that interest,” the court wrote. “… 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.”
The majority opinion goes on to say that the district court had not abused its discretion when it found that the plaintiffs had made an “adequate preliminary showing of harm to warrant the preservation of their rights in status quo pending a full trial.”
Filings before the Supreme Court from both sides of the case cited similar and ongoing cases moving forward throughout the country, including at the U.S. Supreme Court, surrounding the Equal Protection Clauses in both the U.S. and Montana constitutions – including orders and opinions that have happened since the district court hearing last year.
But the state Supreme Court said the district court’s conclusions based solely on Montana’s privacy protections were “sufficient” to uphold the preliminary injunction and that the parties would be able to fully brief and use expert witnesses to make their full argument during a district court trial.
McKinnon’s concurrence, which Gustafson joined, said while there is still much to be litigated in the rest of the case, the full court ignored the equal protection arguments from both sides and left the parties and the district court “without necessary guidance on questions of law entirely appropriate for this Court to address at this juncture.”
She said most of the two sides’ arguments involve equal protection issues surrounding the nature of sex and class discrimination that would apply only under Montana’s constitution and not necessarily under the federal clause. McKinnon wrote that with the U.S. Supreme Court considering a similar case under the federal constitution, the district court in Missoula deserves guidance on which hurdles the plaintiffs would need to clear to succeed on their claim of discrimination on the basis of sex.
“By declining to engage with this question now, we leave this critical definition open to lock-stepping by complicity in whatever direction the United States Supreme Court decides to take,” McKinnon wrote. “This Court should take the opportunity to clearly state that discrimination based on sex as explicitly contained in the equal protection clause includes discrimination on the basis of transgender status.”
Incoming Senate President Matt Regier, R-Kalispell, said in a statement that the court had “sided with liberals at the expense of common sense.”
“Children should not be undergoing irreversible, life-altering transgender procedures,” Regier said. “The Montana Legislature will keep fighting for Montanans against this woke craziness and keep fighting to rein in our out-of-control branch of government.”
Lambda Legal Counsel Kell Olson, from one of the law firms representing the plaintiffs, said in a statement that the Montana Supreme Court “understands the danger of the state interfering with critical healthcare.”
“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,” Olson said in a statement.
