Montana Supreme Court Rules in Favor of Families & Doctors, Blocks Ban on Healthcare for Transgender Youth
Earlier today, the Montana Supreme Court that SB 99, a 2023 Montana law that categorically bans life-saving gender-affirming care for transgender youth, is unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. This ruling will allow Montana communities and families to continue accessing medical treatments for transgender minors with gender dysphoria.
“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” said Phoebe Cross, a 17-year-old transgender boy. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.”
“Fortunately, the Montana Supreme Court understands the danger of the state interfering with critical healthcare,” said Lambda Legal Counsel Kell Olson. “Because Montana’s constitutional protections are even stronger than their federal counterparts, transgender youth in Montana can sleep easier tonight knowing that they can continue to thrive for now, without this looming threat hanging over their heads.”
“We are so thankful for this opportunity to protect trans youth, their families, and their medical providers from this baseless and dangerous law,” said Malita Picasso, Staff Attorney for the ACLU’s LGBTQ & HIV Project. “Every day that transgender Montanans are able to access this care is a critical and life-saving victory. We will never stop fighting until every transgender person has the care and support they need to thrive.”
“Today’s ruling permits our clients to breathe a sigh of relief,” said Akilah Deernose, Executive Director of the ACLU of Montana. “But the fight for trans rights is far from over. We will continue to push for the right of all Montanans, including those who are transgender, to be themselves and live their lives free of intrusive government interference.”
The Court found that the Plaintiffs were likely to succeed on the merits of their privacy claim, holding:
“The Legislature did not make gender-affirming care unlawful. Nor did it make the treatments unlawful for all minors. Instead, it restricted a broad swath of medical treatments only when sought for a particular purpose. The record indicates that Provider Plaintiffs, or other medical professionals providing gender-affirming care, are recognized as competent in the medical community to provide that care.[T]he law puts governmental regulation in the mix of an individual’s fundamental right ‘to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider.’
Two justices filed a concurrence arguing that the Court should also clarify that discrimination on the basis of transgender status is a form of sex discrimination prohibited by Montana’s Equal Protection Clause.
Plaintiffs in the case include Molly and Paul Cross and their 17-year-old transgender son Phoebe; Jane and John Doe joining on behalf of their 16-year-old transgender daughter; and two providers of gender-affirming care who bring claims on their own behalf and on behalf of their Montana patients.
On December 4, the Supreme Court of the United States heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. Today’s decision by the Montana Supreme Court rests entirely on State Constitutional grounds, insulating transgender adolescents, their families, and health care providers from any potential negative outcome at the U.S. Supreme Court.
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LGBTQ Rights
Van Garderen et al. v. State of Montana
LGBTQ Rights
Van Garderen et al. v. State of Montana
Learn More About the Issues in This Press Release
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.