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Montana judge blocks ban of gender-affirming health care for minors

The preliminary injunction on the ban would remain in effect until a full trial could be held on the issue.
Montana judge blocks ban of gender-affirming health care for minors
Posted at 3:58 PM, Sep 27, 2023

A Montana law banning gender-affirming medical care for transgender minors is temporarily blocked, a state judge ruled Wednesday, just four days before it was to take effect.

Legislative debate over Montana's bill drew national attention this spring after Republicans punished Democratic Rep. Zooey Zephyr — the first transgender woman elected to the state’s Legislature — for admonishing lawmakers who supported the bill.

District Court Judge Jason Marks agreed with transgender youth, their families and health care providers that the law passed by the 2023 Montana Legislature is likely unconstitutional and would harm the mental and physical health of minors with gender dysphoria, rather than protect them from experimental treatments, as supporters said it would.

The judge noted the same Republican-controlled legislature passed a law saying patients, including minors, have a right to receive treatment with experimental drugs — as long as it's recommended by a health care provider and they give consent.

Marks said he could only conclude the Legislature's stated intent in passing the law was "disingenuous" and it seemed more likely its purpose is to "ban an outcome deemed undesirable by the Montana Legislature, veiled as protection for minors."

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"Today's ruling permits our clients to breathe a sigh of relief," Akilah Deernose, executive director of the ACLU of Montana, said in a statement. "But this fight is far from over. We look forward to vindicating our clients' constitutional rights and ensuring that this hateful law never takes effect."

The preliminary injunction remains in effect until a full trial can be held on the issue, but the state Department of Justice said it will appeal the injunction.

"We look forward to presenting our complete factual and legal argument to protect Montana children from harmful, life-altering medications and surgeries. Because of the irreversible and immediate harms that the procedures have on children we will be filing a notice of appeal today," spokeswoman Emilee Cantrell said in a statement.

Montana is one of at least 22 states that have enacted bans on gender-affirming medical care for minors, and most face lawsuits. Some bans have been temporarily blocked by courts, while others have been allowed to take effect. The 6th U.S. Circuit Court of Appeals is expected to rule this week on the gender-affirming medical care bans that were allowed to take effect in Kentucky and Tennessee.

In Montana's case, transgender youth argued the law would ban them from continuing to receive gender-affirming medical care, violating their constitutional rights to equal protection, the right to seek health and the right to dignity.

Their parents said the law would violate their constitutional right to make medical decisions for their children, and two medical providers said it would prevent them from providing effective and necessary care to their patients.

"Montana’s ban is a direct assault on the freedom and well-being of transgender youth, their families, and their medical providers," Malita Picasso, staff attorney for the American Civil Liberties Union, said in a recent statement.

The law sought to prohibit the use of puberty blockers, cross-sex hormones and surgical treatments for gender dysphoria, while still allowing cisgender minors to receive puberty blockers to treat early puberty or surgical procedures to treat intersex conditions.

Treatments for gender dysphoria meet standards of care approved by major medical organizations including the American Medical Association and the American Academy of Pediatrics, the ACLU argued in its complaint.

Allowing the ban to take effect would cause irreparable harm to transgender minors who are receiving treatment, in part by exacerbating the anxiety and depression they feel because their body is incongruent with their gender identity, Picasso argued during a Sept. 18 hearing for the preliminary injunction.

The state countered that beginning the treatments put transgender children on a "path of no return" and continuing medical treatment.

"A child cannot possibly consent to the treatment that permanently and irreversibly changes secondary sex characteristics, nor can a child consent to future infertility and sterilization, future sexual dysfunction and a lifetime of hormone treatments and other forms of medicalization and resulting complications," Assistant Attorney General Michael Russell argued.

Zephyr said Wednesday that Republicans who voted for the ban didn't listen to the medical community or families of transgender children who testified during legislative committee hearings that gender-affirming care is life-saving care and silenced her for speaking out against the legislation.

"But now — five months after the legislature adjourned — the ruling is in and they must listen to the courts," Zephyr said in a statement.

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