Montana’s ban on gender-affirming medical care for transgender minors has been temporarily blocked by the state Supreme Court, saying it likely violates the right to privacy enshrined in the state Constitution.
Montana’s highest court on Wednesday sided with an earlier district court decision that blocked SB 99, the ban introduced last year by the Republican-controlled state Legislature. The decision allows transgender girls and boys under the age of 18 to continue gender-affirming medical treatment pending a full trial.
The justices of the Montana Supreme Court agreed with Judge Jason Marks, who ended the ban in September 2023, just days before it went into effect. Marks ruled: “The legislature has no interest … in justifying its interference with an individual’s fundamental privacy right to obtain a particular lawful medical procedure from a health care provider.”
The decision to allow the gender-affirming treatment to continue for the time being was welcomed by the young claimants and advocacy groups. Zooey Zephyr, a Democrat who is the first transgender member of the state legislature, said on social media: “Montana has a constitutional right to privacy, including in our health care decisions. Today, our Constitution continues to protect individuals from government overreach.”
Zephyr was thrust into the national spotlight in the spring of 2023 when she passionately spoke out against the ban in the Montana House. She was expelled from the House by the Republican leadership, sparking major protests.
Montana is one of at least 26 states that have passed a ban on gender-affirming medical care for minors. In contrast, 15 states have introduced protections for youth under the age of 18 who seek treatment.
The Supreme Court’s ruling comes at a crucial time in the national battle over medical care for trans youth. Earlier this month, the U.S. Supreme Court heard oral arguments in a landmark case brought by the ACLU and others challenging Tennessee’s ban on gender-affirming hormonal therapies for trans minors.
The ultra-conservative supermajority of the U.S. Supreme Court seemed intent on upholding the ban in Tennessee. However, trans adolescents in Montana would be protected from any adverse ruling from the nation’s highest court because Montana’s decision is based entirely on the state’s own constitution and as such is insulated from the federal courts.
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“I will never understand why my representatives are working to deprive me of my rights and the rights of other transgender children,” one of the plaintiffs, Phoebe Cross, a 17-year-old transgender boy, said in a statement after the Supreme Secretary of State. court has ruled. “Life as a trans teenager is hard enough. The last thing I and my peers need is to have our rights taken away.”
Cross’ parents, Molly and Paul Cross, were also plaintiffs, joining 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 lawsuit in protest of SB 99, which punishes doctors or health care professionals who knowingly violate the ban with a suspension from medical practice for at least one year.
Akilah Deernose, executive director of the ACLU of Montana, which represented the plaintiffs, said the ruling “allows our clients to breathe a sigh of relief.” But she warned: “The fight for trans rights is far from over.”
