The Montana Supreme Court decided Wednesday to continue a pause on the state’s ban of child sex-change treatments, a transgender child and others are suing Montana’s leaders over the ban.
The Montana Legislature passed a ban on child sex-change treatments including both surgery and medication, during its 2023 legislative session. That September, a state district court blocked the ban from going into effect.
The court ruled that the transgender-treatment advocates were likely to win their lawsuit, children would suffer irreparable harm if the court didn’t block the ban, blocking the ban would be fairer than letting it go into effect and blocking the ban safeguards the public interest.
The Montana Supreme Court on Wednesday upheld that decision unanimously, keeping the treatments legal while the lawsuit is ongoing.
The high court based its decision on a clause in the Montana Constitution that promises an individual right to privacy.
The Wyoming Constitution does not contain such a right, though both Democratic and Republican lawmakers in the Cowboy State have proposed bills that would ask the voters to put a privacy right in the state’s constitution.
In 2024 the lawmakers proposing that change were Democratic Reps. Mike Yin (Jackson) and Karlee Provenza (Laramie), Sen. Chris Rothfuss (Laramie), and Republican Sens. Eric Barlow, (Gillette) and Cale Case (Lander). Republican Reps. Cyrus Western (Sheridan) and Ocean Andrew (Laramie) also proposed that change in 2023.
Transgender Status As Protected Class
In the Wednesday opinion, Montana Supreme Court Judges Laurie McKinnon and Ingrid Gustafson authored a concurring opinion saying they wish the majority had taken its ruling a step further and labeled laws restricting transgender people’s rights or access as sex discriminatory.
That very question – of whether being transgender places a person in a protected class – is now pending before the U.S. Supreme Court as well.
“At least two fundamental rights are implicated here,” argued McKinnon in her concurrence. “The right to be free from discrimination based on sex which necessarily includes transgender status…. and the right to privacy already addressed by the Court.”
A Not-Quite Dissent
Justice Jim Rice wrote a partial concurrence, partial dissent, in which he agreed with the majority’s opinion that the state is not likely to clear the right-to-privacy hurdle in defending its ban.
But Rice said he wished the high court would have allowed a part of the ban – prohibiting state Medicaid distributions for child sex changes – to go into effect.
The science in this field is ever-changing. The FDA still has not approved puberty blockers for use in treating gender dysphoria, and international and national bodies are voicing “growing concerns over the medical benefit of this treatment and the legitimate basis for state intervention,” wrote Rice.
State legislatures typically hold their state’s purse strings and should be given more authority to oversee funding decisions than personal? health decisions, Rice added.
To The South
Wyoming this year enacted a ban on child-sex-change procedures. Sen. Anthony Bouchard, R-Cheyenne, initially called Senate File 99 “Chloe’s Law,” after well-known detransitioner Chloe Cole, whose breasts were removed when she was 15 and had identified as a boy.
Wyoming’s law is in effect and has not been blocked by a court, though its implementation could hinge upon what the U.S. Supreme Court decides in U.S. v Skrmetti.
Though Wyoming does not have a specific right to privacy in its state constitution, it does have a promise of health-care autonomy for competent adults and parents overseeing their children.
That health care autonomy right was the basis last month of a Jackson-based judge’s ruling declaring the state’s abortion bans unconstitutional.
Clair McFarland can be reached at clair@cowboystatedaily.com.
