Montana Supreme Court affirms ruling against ban on youth gender-affirming care

Montana enacted a law in 2023 prohibiting administration of gender-affirming care for transgender minors, which was quickly challenged by the ACLU of Montana and other civil rights organizations as violating the state’s constitution. Montana District Judge Jason Marks decided that the plaintiffs had shown the likelihood that the law violates the state constitutional rights of privacy and equal protection of the laws and issued the preliminary injunction, which will be in effect while the case is litigated to a final district court ruling on the merits. Meanwhile, the state appealed the preliminary injunction ruling to the state Supreme Court. On Dec. 11, that seven-member court affirmed the district court’s decision solely on the basis of the right of privacy, but one member writing separately would also have affirmed Judge Marks’s equal protection ruling, and another would have reversed Judge Marks’ enjoining a provision of the law that prohibits funding for gender-affirming care under the state’s Medicaid program, while noting that “the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues.” The Montana Supreme Court’s decision is not a ruling on the merits of the constitutional challenge, but rather a determination that Judge Marks did not abuse his discretion in granting preliminary relief and endorsing, over the state’s contrary argument, his determination that the plaintiffs, some transgender minors and parents and two health care practitioners, had standing to bring the case. The Montana case, Cross v. State, differs in crucial respects from the case now pending before the US Supreme Court on Tennessee’s ban on gender-affirming care for minors, United States v. Skrmetti, which was argued on Dec. 4 and will be decided by that court later in 2025. That case was brought in federal court and relied in the first instance on federal constitutional equal protection claims by the trans minor plaintiffs and due process claims by their parents, who argued that the law infringed on their liberty rights as parents to determine what medical care to provide to their children. Unlike the US Constitution, which doesn’t explicitly mention privacy, the Montana Constitution does. It provides that “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” The US Supreme Court has interpreted the concept of “liberty” protected by the Due Process Clauses of the Fifth and 14th Amendments to include a right of privacy in some cases, but that right, sometimes referred to as an aspect of “substantive due process,” is controversial and its boundaries not clearly defined. Substantive due process was sharply curtailed by the US Supreme Court recently when it overturned Roe v. Wade in the Dobbs decision, ruling that the states were free to regulate or prohibit abortions without any constraint from the US Constitution, which does not mention abortion or privacy and whose relevant provision, the 14th Amendment, was adopted at a time when abortion was illegal in most of the states. Adopting a “historical” approach to interpreting Due Process, the US Supreme Court rejected the argument that a provision adopted in 1868 could be found to protect a right to abortion. By contrast, the Montana Supreme Court has interpreted the state’s constitutional right to privacy in a case involving health care in such a way as to support the plaintiffs’ claim in this case. In a 1999 decision, Armstrong v. State, that court held that “except in the face of a medically acknowledged, bona fide health risk, clearly and convincingly demonstrated, 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.” Judge Marks considered evidence from both the plaintiffs and the state on the benefits and risks of gender-affirming care for minors and the position of the medical profession regarding such care. On the plaintiffs’ side were the major professional medical associations in the US that endorse providing such care in appropriate cases, as well as the World Professional Association for Transgender Health (WPATH), which publishes standards that have been followed by many courts in considering the issue of appropriate care for gender dysphoria. As a preliminary matter, Judge Marks found this evidence more convincing than the state’s arguments about risks, which have little support from the medical profession. Gender-affirming care for minors has become controversial enough that some countries in Europe have cut back on its availability, although none have adopted an across-the-board outright ban as Montana has done. Given this record, the Montana Supreme Court found that Judge Marks’ decision to issue an injunction was not an abuse of discretion, which is the standard for evaluating an appeal from a preliminary injunction. Since any one ground for enjoining the law would be sufficient, the Supreme Court decided not to take on the equal protection issue in this decision. Justice Beth Baker wrote the opinion that was joined by five other justices. Justice Laurie McKinnon wrote a separate opinion concurring in the result but arguing that the court should also have affirmed Judge Marks’s ruling on equal protection. Justice Jim Rice, as noted above, while agreeing to affirm Judge Marks’s preliminary injunction as to the performance of gender-affirming care, wrote a partial dissent on the issue of coverage for gender-affirming care under the state’s Medicaid program. Pointing out that some federal courts have issued injunctions against the new federal Title IX rules with the effect that “there is no current federal mandate for Medicaid funding of gender-affirming care,” he argued that “funding decisions fall within the Legislature’s primary constitutional duty and I believe they should be subject to rational basis review,” unlike the state constitution’s privacy provision, which involves a “fundamental right” and thus is subject to strict scrutiny. The state’s interest in not subsidizing the performance of gender-affirming care could be upheld as rational in light of the controversies about it, he wrote. The court’s ruling only upholds the preliminary injunction. The next step would be full discovery and a trial before Judge Marks for a final ruling, which would then be subject to appeal. Because this case was litigated entirely on state constitutional grounds, the state cannot appeal it to the US Supreme Court.