Court orders state to pay more than $1.3M in attorneys’ fees in gender-affirming care case

A district court judge ordered the state of Montana to pay $1.3 million in attorneys’ fees and costs in a challenge to Senate Bill 99, deemed an unconstitutional ban on gender-affirming care for transgender minors.

The ACLU of Montana, American Civil Liberties Union, Lambda Legal and Ashurst Perkins Coie sued the state of Montana on behalf of Phoebe Cross and won the case last year.

The order, issued Monday, means the State of Montana – and not families and nonprofits defending their constitutional rights – bear the financial consequences of defending an unconstitutional law, the ACLU of Montana said in a news release.

In the order, Missoula County District Court Judge Jason Marks said the Montana Legislature had been warned the law would be unconstitutional and never should have passed it.

“Defendants argue for efficiency and protecting Montana taxpayers,” Marks wrote. “The best way to save Montanans money and to promote efficiency is to not pass laws violating the Montana Constitution in the first place.”

The judge also said multiple people had warned legislators the bill couldn’t be amended to be constitutional, including Akilah Deernose, director of the ACLU of Montana, and SK Rossi, who testified on behalf of the Human Rights Campaign.

“There is no way to fix it because the central tenet of it is unequal treatment for transgender people,” Rossi told the legislature in a hearing, as cited in the order.

Republican Gov. Greg Gianforte signed the bill. His office did not respond to a request for comment late Thursday about the cost to taxpayers.

A news release from the ACLU of Montana said the ACLU and Lambda Legal are nonprofits that rely on fee awards authorized under Montana law to represent individuals whose constitutional rights have been violated.

“Today’s decision reinforces a fundamental principle: When the government violates constitutional rights, it should be responsible for the costs of that unlawful action,” said Alex Rate, legal director at the ACLU of Montana, in a statement. “No family should have to shoulder the financial burden of protecting rights guaranteed by the Montana Constitution.”

The lawyers had asked for $1.45 million in fees and costs, and the judge awarded $1.33 million, cutting out some hours of team meetings he deemed excessive, and trimming time from a lawyer that had dropped out of the case.

In setting the award, the judge weighed the experience and reputation of the legal team, its sound judgement in eliminating excess billing, the labor involved and complexity of the case (it involved responding to 715 written discovery requests and producing nearly 1,200 documents, the judge said).

“Plaintiffs’ counsel dedicated substantial time and effort to litigating the complicated and important constitutional issues this case raised — achieving success at each state of litigation,” the order said. “ … Plaintiffs sued, and won, to vindicate the important public policy of safeguarding Montanans’ rights to privacy, freedom of speech and expression and equal protection under the Montana Constitution.”

The ACLU of Montana said the constitutional victory in the case “remains one of the strongest state court decisions protecting access to gender-affirming medical care in the country.

“Because the case was decided under the Montana Constitution, those protections remain independent of changes in federal constitutional law.”

The ACLU of Montana said the state is expected to appeal the decision and fees to the Montana Supreme Court, but spokespeople from Attorney General Austin Knudsen’s office did not respond to a message late Thursday about the case.