Metro Weekly

Montana Judge Blocks State’s Ban on Trans Health Care

Judge issues preliminary injunction, finding that the state's purported concern for transgender minors' well-being is "disingenuous."

Montana District Court Judge Jason Marks – Photo: Fourth Judicial District of Montana.

A Montana state district court judge issued a temporary preliminary injunction blocking the state’s law banning transgender-identifying minors from accessing gender-affirming treatments.

Judge Jason Marks, of the state’s Fourth Judicial District, issued the injunction on Wednesday, Sept. 27, a week after hearing arguments for why state authorities should be blocked from enforcing Senate Bill 99 while the measure’s constitutionality and merits are debated in court.

In his ruling, Marks found that the plaintiffs who challenged the law, which was slated to take effect on Oct. 1 after being signed by Republican Gov. Greg Gianforte earlier this year, were likely to succeed in proving that the law violates the state constitution’s guarantees of equal protection and the right to privacy.

Marks also found that, without a preliminary injunction, the plaintiffs in the case — two sets of parents with transgender children, and two medical providers — were likely to suffer “irreparable harm” if the state were allowed to enforce the law, which prescribes that doctors who recommend gender-affirming treatments to minors lose their license for at least a year, if not longer, for “unprofessional conduct.”

The law also allows those same doctors to be sued by former patients for “physical, psychological, emotional, or physiological harms” for up to 25 years after treatment.

Marks further found that the ban on gender-affirming care appears to have “no rational relationship to protecting children.” In fact, he found that the law, if enforced, would likely have the opposite effect. 

State Rep. Zooey Zephyr (D-Missoula) made the same arguments against the ban during floor debate, only to be punished by Republicans and barred from the chamber for an impassioned speech asserting that the law could likely lead minors suffering from gender dysphoria to attempt suicide.

Noting that the treatments prohibited under the law are the ones that most medical experts and mainstream medical associations recommend for treating severe gender dysphoria, Marks pushed back against the state’s arguments that gender-affirming treatments are “experimental” and unsafe.

Despite not being expressly approved by the Food and Drug Administration for the purpose of treating gender dysphoria, Marks noted that, for decades, doctors have been allowed to recommend the “off-label” use of any drug approved by the FDA if they believe it will assist in treating their patients.

Marks further noted that many of the medications prohibited under the law, including puberty blockers or hormones, are frequently used to treat other conditions besides gender dysphoria.

Yet the law approved by the Republican-dominated legislature would only bar transgender-identifying minors from accessing such treatments, and would not penalize doctors for recommending the exact same treatments for a minor with a hormone disorder, for example.

Therefore, Marks found, the plaintiffs are likely to succeed in arguing that barring only a specific group of individuals from receiving such treatments may violate the plaintiffs’ right to equal protection under the law.

Additionally, he offered up the possibility that the law’s prohibitions for trans-identifying minors may constitute a form of sex-based discrimination. 

Lastly, Marks noted that state lawmakers also passed, during this same session, a “right to try” bill allowing any person to access treatment through an “investigational drug” as long as they have received a recommendation from their health care provider and provide written consent that they’ve been informed of its potential side effects.

That bill, Senate Bill 422, was pushed through by Republican lawmakers who wanted to green-light the right of Montanans to pursue non-FDA-approved drugs like ivermectin to treat COVID-19. But Marks noted that the rationale behind the ban on gender-affirming care seems to directly counter the rationale behind SB 422.

“The Court finds it fascinating that SB 99 and SB 422 were passed in the same legislative session,” Marks wrote. “Read together, SB 99 and SB 422 authorize parents to give consent for their minor children to engage in experimental medical treatments, regardless of efficacy or risk, that cannot be blocked by the State unless the minor is transgender and seeking medical treatment for gender dysphoria in line with the recognized standard of care. The Court is forced to conclude that the purported purpose given for SB 99 is disingenuous.”

Citing statements made during debate over the proposed law by State Sen. Theresa Manzella (R-Hamilton), who claimed that people cannot change the sex they were created to be by God, and Sen. John Fuller (R-Whitefish), who asserted that pursuing hormone therapy was not “natural,” Marks wrote, “The legislative record is replete with animus toward transgender persons…and statements from individual legislators suggesting personal, moral, or religious disapproval of gender transition.”

In issuing the preliminary injunction, Marks has allowed transgender minors and their parents to consent to gender-affirming treatments that they believe are best suited to address their children’s medical needs. They will be able to continue to do so while the law’s constitutionality is challenged in court, barring a stay by a higher court. 

While the Montana Attorney General Austin Knudsen’s office has not said whether it intends to appeal the injunction to the Montana Supreme Court, it would not be surprising to see it do so.

Knudsen has previously defended other anti-LGBTQ laws passed by Montana lawmakers, including a measure seeking to bar drag performances in public, which was blocked from by a federal judge last month.

Bans on gender-affirming care have been passed in 22 different states.

In June, a federal judge found a nearly identical ban in Arkansas to be unconstitutional. Several other state bans have been blocked by federal judges, only to subsequently be overturned by conservative appeals courts, including the 6th Circuit and 11th Circuit.

As a result of those rulings, laws in Tennessee, Kentucky, and Alabama have been allowed to take effect, with injunctions blocking bans in Georgia and Florida likely to be allowed to take effect as well. But it remains to be seen whether the 6th and 11th Circuit decisions are judicial outliers, or the norm regarding how the courts deal with challenges to restrictions on gender-affirming care.

Lawyers for the plaintiffs praised the preliminary injunction. 

“We are gratified the judge understood the danger of denying transgender Montana youth access to gender-affirming care as the challenge to this cruel and discriminatory law proceeds,” Kell Olson, an attorney for Lambda Legal, said in a statement. “Transgender youth in Montana will continue to thrive, and removing this looming threat to their well-being is an important step in allowing them to do so.”

Akilah Deernose, the executive director of the American Civil Liberties Union of Montana, said the ruling allows the plaintiffs to “breathe a sigh of relief,” although the fight against the law is not anywhere near finished. 

“We look forward to vindicating our clients’ constitutional rights and ensuring that this hateful law never takes effect,” Deernose said.

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