Judge takes up gender-affirming care arguments in Missoula County District Court

Missoula County District Court Judge Jason Marks peppered questions at a lawyer for the State of Montana in a hearing Thursday about whether a bill that bans gender-affirming care for minors is constitutional.

In 2023, the Montana Legislature adopted, and Gov. Greg Gianforte signed, Senate Bill 99, which banned gender-affirming care for minors in Montana. The bill also opened up providers to punishment and civil actions.

A coalition of minors and providers sued the state, and in December 2024, the Montana Supreme Court found the District Court in Missoula was correct in temporarily blocking the law based on privacy rights in the state Constitution.

Thursday, Marks heard arguments for summary judgment, or a decision without a trial based on the facts already presented.

ACLU of Montana lawyer Alex Rate argued the case, Cross et al v. State of Montana, is parallel to abortion lawsuits in which courts have granted summary judgment based on the state’s constitutional right to privacy.

Those abortion cases have been unanimously upheld by the Montana Supreme Court.

In a separate case regarding an executive order, Rate said, “the federal court there said, quote, the evidence supporting gender affirming care for adolescents is as robust as the evidence supporting other pediatric treatments.”

However, Michael Noonan and Thane Johnson for the State of Montana said a trial is warranted.

Noonan said the parties disagree on many material facts, such as the harms of gender-affirming care, and experts are offering differing opinions that need to be sorted out.

“A trial is the appropriate time to evaluate the merits of the competing evidence presented in this case,” Noonan said.

State argues it’s protecting minors

In his argument, Noonan said the state Constitution gives the state the power to protect minors in Article 2 Section 15, and SB 99 “clearly enhances the protection of minors.”

He said care can leave people infertile or irreversibly physically damaged, it isn’t proven to reduce the risk of suicide, and some countries in Europe, which had been the “vanguard” of such treatments, have since reversed course.

Meanwhile, Noonan said, some people in the U.S. end up rushed into gender-affirming care, without an adequate or even any psychological evaluation.

When the government has a “compelling interest,” such as protecting a minor, it can enforce a law designed to be narrow enough to address that interest.

In one of many questions for Noonan, Marks said he wanted to know why the law bans the treatment altogether.

Instead, Marks said, it could have required extra evaluations before allowing a patient to grant “informed consent,” a voluntary decision to receive a medical intervention with knowledge of its risks and benefits.

“I don’t see this as narrowly tailored to the problem you’re addressing. Can you help me with that?” Marks said.

Marks also said the idea that people under 18 can’t give informed consent doesn’t seem to be supported by Montana law.

Noonan said Montana’s approach in SB 99 aligns with Europe’s approach, which starts with psychotherapy, but doesn’t rush into gender-affirming care.

He said in the U.S. minors are being hurried into treatments that might be unnecessary, and they don’t get the “full scope” of what might alleviate their gender dysphoria, the condition of feeling like one’s gender is out of alignment with one’s sex at birth.

But Marks said under the law, even minors who had gone through an extensive evaluation and continued to experience gender dysphoria would not be able to receive gender-affirming care.

“Doesn’t that seem problematic?” Marks said.

The judge also said Montana offers a higher degree of privacy protection than other states.

Additionally, Marks said he struggled with the idea that the legislature could ban a certain treatment because the possibility of a negative outcome, a conclusion he saw in the state’s argument.

For example: What about a concern stemming from a debunked claim that measles vaccines cause problems?

Noonan argued the parallel didn’t apply: “There was one study that’s been clearly debunked, and the medical consensus, at least I would say globally, is that vaccines are fine. We don’t have the same facts here.”

Marks, though, said he wrestled with the idea the state had a legitimate position in its blanket ban on gender-affirming care when minors already can give consent to treatments that can result in other serious harms or even death, such as surgery to remove a brain tumor.

“Under Montana law, this is literally the only treatment that a child cannot give informed consent to,” Marks said. “ … Why do you think that’s a defensible position?”

Noonan said adolescents don’t always choose wisely, it’s not a lifelong ban, and the decisions are heavy and consequential, such as infertility.

“Can they even weigh what that means in the future, and will that matter to them?” Noonan said.

Plaintiffs show framework for summary judgment

Rate said the state offered claims about gender-affirming care from “experts who don’t treat gender dysphoria” and witnesses who don’t have any connection to Montana.

He said it had to look to Europe for its arguments, although no country offers a ban as “draconian” as Montana’s, and the two that the state identified are in the United Kingdom, which he said allows hormones at 16.

He said the “true justification for Senate Bill 99” is “animus, plain and simple.”

Rate, for the ACLU of Montana, said the case is actually simple and straightforward.

Rate said the cases that offer the legal framework are abortion cases in Montana, which have been decided on summary judgment without trial “almost without exception.”

The plaintiffs are Phoebe Cross, a transgender minor, and parents Molly and Paul Cross; a couple of medical providers Juanita Hodax and Katherine Mistretta, on behalf of themselves and their patients; and a John Doe and Jane Doe.

Their legal team also includes ACLU’s National LGBT & HIV Project, Lambda Legal, and Perkins Coie.

As for the legal framework, Rate said the right to privacy for abortion is parallel in this case for gender-affirming care, and privacy is protected in the Montana Constitution.

“Health care decisions should be made between an individual and their health care providers, not by the legislature, not by the executive, not by the courts,” Rate said.

He said the state had argued that abortion comes with great risk of complications, and the state had a right to protect its citizens.

But Rate said in Weems et al. vs. State of Montana and other cases, the court found the state could not show the laws were narrowly tailored to address the concern.

He also pointed to rulings in Planned Parenthood vs. the state of Montana and Armstrong vs. the State of Montana.

Additionally, he said, the state’s argument about a high health risk didn’t hold up when compared to abortion.

In another parallel case, he said the court found a medical protocol — endorsed by major medical organizations — was prohibited for abortion care, but the identical protocol was allowed for miscarriages.

But in that case, the court found there can’t be “a bona fide health risk” if the protocols are the same, he said. Rather, Rate said, “the state made a values judgment that it doesn’t like abortion.”

In fact, he said, in another case about parental consent, the state argued a minor was not mature enough to decide to get an abortion, but the court struck down that law as well, finding the state’s interest wasn’t compelling, or narrowly tailored.

The state argued some people regret gender-affirming care, and Rate said some people periodically regret abortion too, but that doesn’t justify making it illegal.

Even if the judge accepted the state’s “overly inflated” data point that 30% of people who experience such care regret it — “which we vigorously dispute” — he said it would still mean 70% don’t regret it, but would be banned from receiving it.

Even in the Cross case, he said, the court has provided a clear roadmap to strike down SB 99 as unconstitutional.

Rate also shared the results of gender-affirming care for one of the team’s clients.

“Our client Phoebe Cross has flourished as a result of receiving gender affirming care,” Rate said.