Note: This story first appeared in the Daily Montanan. It is republished here with permission and under Creative Commons license CC BY-NC-ND 4.0.
Attorneys for doctors, families and transgender minors have counted the ways that Senate Bill 99, which bans gender-affirming care for those less than 18 in Montana, violates the state and federal constitution.
In a court filing on Monday in state district court in Missoula, attorneys have asked Judge Jason Marks for a preliminary injunction which would halt the law from taking effect. They outline seven different ways the law passed earlier this year violates the constitutional rights of Montanans.
The attorneys, which include the American Civil Liberties Union, the ACLU of Montana, Lambda Legal and Perkins Coie of Seattle have asked Marks to stop the law from going into effect, saying that it could irreparably harm the youth, force families out of state and force doctors to abandon part of their practice, or risk losing their medical license.
Senate Bill 99, which was championed by the Republican-controlled Legislature, would have prohibited evidence-based care for gender dysphoria for individuals less than the age of 18.
“Through the act, the state attempts to override the informed medical decision-making of doctors, patients and their parents,” the lawsuit states. “However, the act allows the use of the same treatments when provided to minors for the purpose of treating other conditions.
“The act unlawfully infringes on their constitutional right to equal protection of the laws, the right of parents to direct the upbringing of their children, the right to privacy, the right to seek health care, the right to dignity, and the right to freedom of expression.”
The court documents argue that puberty blockers, which are used after a transgender individual begins puberty, are both reversible, but critically timely.
“Puberty blockers are particularly time-sensitive given the irreversible changes to secondary sex characteristics that occur during puberty,” the court documents said. “Delaying treatment until age 18 could lead to many unnecessary years of suffering.”
Attorneys argue that SB 99 forces doctors to restrict identical treatments to patients based on gender.
“Estrogen and testosterone therapy are regularly prescribed to cisgender children to treat a range of conditions, including Turner’s Syndrome and hypogonadism, and cisgender girls with polycystic ovarian syndrome may use testosterone blockers to manage increased facial and body hair often associated with that condition,” the suit said. “The same treatments that are permitted for cisgender minors are banned if provided to transgender minors.
“A minor born as a male may be prescribed testosterone … but a minor born as a female is not permitted to seek the same medical treatment.”
Attorneys for the plaintiffs also argue that the law serves no legitimate government interest, challenging the entire rationale for it in the first place. The lawmakers’ stated justification for SB 99 during the legislative session was to protect “minors and their families from any form of pressure to receive harmful, experimental puberty blockers and cross-sex hormones to undergo irreversible, life-altering surgical procedures.”
However, attorneys, through the testimony of medical experts, point out that stopping puberty blockers is not irreversible and if they are discontinued, puberty will restart. Furthermore, they point out that minors do not typically undergo any surgery until after they reach adulthood.
“Nothing in the legislative records supports a finding that minors are in fact being faced with any such pressure, and certainly the record contains nothing suggesting the act would ‘protect minors and their families,’” the court documents said.
Instead, attorneys said the real reason for the law’s passage was nothing more than lawmakers’ animus against transgender people.
“And animus toward a politically disfavored group can never be a legitimate governmental interest,” the suit said.
Parental rights and Montana law
The lawsuit also points out that the state constitution offers strong protections against government interference in medical decisions, leaning heavily upon the 1999 Montana Supreme Court case, Armstrong vs. State of Montana – a landmark case that determined having an abortion was a constitutionally protected procedure because it’s directly tied to the right to privacy.
Attorneys also highlighted that during the 2023 Legislative session in which SB 99 was passed, lawmakers often invoked the supremacy of parents’ rights, a topic which crept into conversations ranging from vaccinations to materials at school libraries. Now, attorneys fighting against SB 99 say that parental rights that include what lessons are being taught should also include the right to make medical decisions for their children.
“Indeed parents’ fundamental right to seek and follow medical advice is at its apogee when the parents, their minor child and that child’s doctor all agree on an appropriate course of medical treatment,” the suit said.
Using the Armstrong decision as the guide, the attorneys point out that the “state must present clear and convincing evidence of a ‘medically-acknowledged, bona fide health risk. Otherwise the legislature has no interest, much less a compelling one, to justify its interference with an individual’s fundamental privacy right to obtain a particular lawful medical procedure from a health care provider that has been determined by the medical community to be competent to provide that service and who has been licensed to do so.’”
The court documents present examples of what attorneys say is an overriding hostility toward transgender residents, by characterizing the treatment as “disfigurement” and “mutilation,” while also straying far beyond medical treatment by restricting “clothing or devices, such as binders, for the purpose of concealing a minor’s secondary sex characteristics,” something they describe as “clearly not aimed at any legitimate health concern.”
Among the other rights implicated in SB 99, the suit says, are the right to seek health, the right to dignity, also found in the Armstrong decision, as well as violations of the First Amendment’s guarantee of the right to free speech.
“The act bars healthcare professionals from speaking – and their patients and parents from hearing – about medically accepted treatments for gender dysphoria,” the lawsuit said. “The act is content and viewpoint-based regulation of speech.
“… Such content-based regulation of speech is ‘presumptively unconstitutional and may be justified only if the government proves that it is narrowly tailored to serve compelling state interests’ under strict scrutiny.”
Strict scrutiny is a legal term used to describe the highest level of concern the court can have, which requires the government to prove it has a legitimate, factual basis for passing the law, and that the law is crafted narrowly to achieve that purpose in the least restrictive way possible.
The law is scheduled to go into effect on Oct. 1.
The plaintiffs in the Montana case said that if the law goes into effect, or stands that they will have to “contemplate drastic measures,” which include either terminating medical care or leaving the state.
Laws similar to SB 99 have been passed throughout the country. Many have been challenged in state and federal courts with a variety of outcomes.
In Tennessee, a federal court had blocked that state’s attempt to stop gender-affirming care, but the U.S. Sixth Circuit Court of Appeals overturned the decision and let the law go into effect immediately. Meanwhile, a federal judge in Indiana has partially halted a similar measure there.
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