Transgender Care: Which Side of the Door Is Right?
Today the Montana Supreme Court took its first swipe at an issue which pits social conservatives against a libertarian view of the right of privacy. As a longtime Republican with friends on both sides of this issue, I have been waiting to see whether the right of privacy can survive in a world where transgender care is viewed as a form of child abuse.
In 2023 the Montana legislature passed laws to limit if not entirely prevent transgender care. One part of that law prohibits administration of hormones or puberty blockers which alter the development of a child with the characteristics of that child’s gender at birth. Physicians who prescribe in contravention of the law can have their licenses suspended for a year or more. No policy of insurance can cover a physician engaged in providing transgender treatment and the law affords a cause of action to parents of children who receive this form of care where the child secured the treatment independently.
Phoebe Cross is a minor who was receiving transgender care from a physician when Montana’s Senate Bill 99 became law. Her care was provided by a nurse practitioner in Bozeman Montana under the direction of a board certified endocrinologist affiliated with Seattle Children’s Hospital. In May 2023, Ms. Cross’ parents filed an action to prevent the new law from interfering with her treatment for gender dysphoria. They provided expert testimony by affidavit of her condition, the potential consequence of a denial of treatment and to show that the treatment met standards of the World Professional Association for Transgender Health. Those standards generally defer any surgical treatment until the patient attains majority. The WPATH has been issuing such standards since it was founded in 1979. The State of Montana replied that there is not a medical consensus around using puberty blockers and cross-sex hormones to treat gender dysphoria in minors; and that gender-affirming care harms minors.
Plaintiffs also presented evidence showing that leading United States medical organizations, including the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics, endorse and cite the WPATH standard of care as authoritative for treating gender dysphoria. The WPATH standard of care, Plaintiffs asserted, specifically recommends treatments for gender dysphoria in minors, such as puberty blockers, which SB 99 proscribed.
The trial court concluded that Ms. Cross met her burden under Montana law to secure an injunction against enforcement of Senate Bill 99. The State appealed to the Supreme Court to reverse this injunction pending full hearing. On December 11, the Montana Supreme Court affirmed the injunction on the basis that there was no abuse of discretion in the trial court’s ruling.
To secure the preliminary injunction Ms. Cross had to show she was (a) likely to succeed on the merits; (b) likely to suffer irreparable harm in the absence of preliminary relief and; (c) the balance of equities tips in the applicant’s favor. The order must also be in the public interest.
The standard in deciding this kind of case in Montana is governed by Armstrong v. State, 989 P.2d 364 (Mt. Supreme, 1999), which held that:
[E]xcept in the face of a medically[] acknowledged, bona fide health risk, clearly and convincingly demonstrated, the legislature has no interest, much less a compelling one, to justify its interference with an individual’s fundamental privacy right to obtain a particular lawful medical procedure from a health care provider that has been determined by the medical community to be competent to provide that service and who has been licensed to do so.
The trial court could find no immediate risk of Ms. Cross’ treatment regiment to her and is, in fact, the standard care for gender dysphoria. The fact that these standards also sought to avoid any surgical treatment for the condition during minority was itself persuasive.
Also significant in these rulings was Montana’s constitutional right to privacy. It provides that: “[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Art II, Section 10. “Montana’s constitutional right to privacy ‘broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from governmental interference.’” (quoting Armstrong v. State). Thus, strict scrutiny is applied when a fundamental right, such as the right to privacy, is affected. Stand Up Mont. v. Missoula Cnty. Pub. Sch., 514 P.3d 1062 (Mt. Supreme 2022).The strict scrutiny standard requires that the State demonstrate the challenged law is narrowly tailored to serve a compelling government interest and only that interest. Id. Without clearly and convincingly establishing that gender-affirming care poses a “medically[] acknowledged bona fide health risk,” which Plaintiffs maintain the State did not do, the State’s police power does not allow it to infringe on an individual’s fundamental right to privacy. Armstrong, supra.
The state argued that the privacy right must yield to the state’s police power. Here the Supreme Court disagreed with one exception. The legislature may restrict this fundamental right to privacy only when it can demonstrate a medically acknowledged, bona fide health risk. Armstrong. In those instances, the law must be tailored narrowly so that it is “the least onerous path that can be taken to achieve the state objective.” Wadsworth v. State, 911 P.2d 1165, 1174 (1996).
The Supreme Court finds that 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 the medical professionals providing gender-affirming care, are recognized as competent in the medical community to provide that care.
The state argued that the plaintiff did not show irreparable harm. The Court found that where the law the state sought to enforce conflicted with a constitutional right, irreparable harm was presumed. In addition, the plaintiff’s affidavit indicated a fear the minor might self harm, should the course of hormone treatment be discontinued.
To be clear, this is a ruling on a preliminary injunction in a state with a very strong constitutional provision addressing privacy. In Pennsylvania, the case law this writer has found has centered on the search and seizure rights for things found in its citizens’ cars. On that subject Pennsylvania’s Supreme Court noted that the Commonwealth does not have the same right of privacy as Montana. Com. v. Alexander, 243 A.3d 177 (Pa. 2020). But the same opinion makes several references to Pennsylvania’s constitutional privacy protections greater than those encompassed in the 4th Amendment of the U.S. Constitution.
The die is cast. On one side are Americans with children who struggle with gender identity. They contend that they have a right to raise their children without government interference or intervention. On the other side are Americans who believe that these same parents are abusing their own children and challenging the will of the Almighty in determining their gender.
Then there is the fact that roughly 1 in every 2,000 babies in the U.S. are born with a range of traits that fall somewhere along the spectrum between male and female. Some physicians assert that the number of intersex babies may approach one percent depending on the biological markers evaluated. Should these children and their parents be told that nothing is to be done- it’s God’s will? We shall see.
Cross v. Montana is here: getDocByCTrackId