Montana Judge Sides with Transgender Youth

Four days before the implementation of Montana Senate Bill 99 would take effect, Montana District Court Judge Jason Marks ordered that a preliminary injunction be given to plaintiffs. [1] The bill in question, SB99, would effectively ban gender affirming care for minors that are specifically being treated for gender dysphoria across the state. [2] While Montana’s department of state does intend to appeal the injunction, the decision is a clear victory for transgender youth throughout the state.

SB99 was particularly controversial upon its introduction to the Montana Senate on the basis that it was discriminatory towards individuals suffering from gender dysphoria. The bill plainly states, “a person may not knowingly provide the following medical treatments to a female minor to address the minor's perception that her gender or sex is not female,” as well as similar language to prohibit males from receiving the same care. [5] The bill also provides that medical treatments such as puberty blockers are specifically banned for individuals. [5] The claims of discrimination primarily stem from the fact that the bill leaves treatments such as puberty blockers open to individuals not suffering from gender dysphoria.

Judge Marks noted the discrepancy, stating that SB99, “does not serve its purported compelling governmental interest of protecting minor Montanans.” [4] Judge Marks also claimed that SB99 violates Montana’s Equal Protection Clause on the basis that its restrictive qualities apply only to transgender individuals. [4] While this is only an injunctive order, the implications of this precedent are wide reaching if the higher courts choose to uphold it. The injunctive order was granted on the basis that “irreparable harm is likely to occur” for individuals who recently rely on the treatments that would be banned by SB99. [4] The official acknowledgement that the removal of such medical treatments could result in harm could be used to ensure that if Montana’s DOJ is successful in their appeal, individuals who are already utilizing such treatments may be able to continue their treatment.

SB99 does still pose a threat to individuals with gender dysphoria, however, even if the bill is defeated. Section 10 of SB99 states that Montana’s medicaid program will not cover any of the treatments prohibited in Section 4 of the bill. [4] Should SB99 be deemed unconstitutional in court, the proponents of limiting gender-affirming care may choose to attack insurance providers instead, ensuring that individuals covered by state insurance programs will not be reimbursed or covered when receiving such care, making certain treatments prohibitively expensive.

Despite the potential future challenges, the conclusions reached by Judge Marks suggest that the constitutional incongruences within SB99 will be addressed. Despite political support for the limitation of gender-affirming care in Montana, SB99 still remains at the mercy of the courts. While the final decision is yet to come, Montana’s transgender youth can be relieved that their case has been heard and their rights have been secured by the integrity of judicial review.