Montana’s ban on gender-affirming medical care for transgender minors has been temporarily blocked by the state supreme court on grounds that it is likely to violate the right to privacy enshrined in the state’s constitution.
The top court in Montana sided on Wednesday with an earlier district court decision blocking SB 99, the ban introduced last year by the Republican-controlled state legislature. The decision will allow under-18 transgender girls and boys to continue gender-affirming medical treatment pending a full trial.
Montana’s supreme court justices agreed with the district court judge Jason Marks who put a stop to the ban in September 2023, just days before it came into effect. Marks ruled: “The legislature has no interest … to justify its interference with an individual’s fundamental privacy right to obtain a particular lawful medical procedure from a healthcare provider.”
The decision to allow gender-affirming treatment to continue for the time being was greeted with delight by the young plaintiffs and advocacy groups. Zooey Zephyr, a Democrat who is the first out trans member of the state legislature, said on social media: “Montana has a constitutional right to privacy, including in our healthcare decisions. Today our constitution continues to protect individuals from government overreach.”
Zephyr was propelled into the national limelight in the spring of 2023 when she spoke passionately against the ban in the Montana house. She was banished from the chamber by the Republican leadership prompting large protests.
Montana is among at least 26 states that have introduced bans on gender-affirming medical care for minors. By contrast, 15 states have enacted protections for under-18s seeking treatment.
The state’s supreme court ruling comes at a critical moment in the nationwide battle over medical care for trans youth. Earlier this month the US supreme court heard oral arguments in a landmark case brought by the ACLU and others against Tennessee’s ban on gender-affirming hormonal therapies for trans minors.
The ultra-conservative supermajority of the US supreme court appeared to be minded to uphold the Tennessee ban. However, trans adolescents in Montana would be shielded against any adverse ruling from the country’s highest court because the Montana decision is based entirely on the state’s own constitution and as such is insulated from the federal courts.
“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 after the state supreme court issued its decision. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”
Cross’s parents, Molly and Paul Cross, were also plaintiffs, alongside Jane and John Doe on behalf of their 16-year-old trans daughter. Two medical providers of gender-affirming care in Montana also joined the suit in protest against SB 99 that punishes doctors or healthcare professionals who knowingly violate the ban with suspension from medical practice for at least a year.
Akilah Deernose, director of the ACLU of Montana which represented the plaintiffs, said the ruling “permits our clients to breathe a sigh of relief”. But she warned: “The fight for trans rights is far from over.”
