Last year, in both Tennessee and Montana, Republican lawmakers banned medical professionals from providing gender-affirming healthcare to transgender youths. Both statutes arose out of a nationwide effort by rightwing special interest groups to legally compel compliance with traditional gender norms. And both statutes now face constitutional challenges brought by trans kids and their families who reside in the states. But the two cases have some important distinctions.
In U.S. v. Skrmetti, trans youths are challenging the Tennessee law under the federal Constitution, before the U.S. Supreme Court. And in Cross v. Montana, trans youths are challenging the Montana law on state constitutional grounds, before the Montana Supreme Court. These differences—which constitution and which courtroom—are yielding dramatically different results.
When the U.S. Supreme Court heard oral argument in Skrmetti last week, the conservative supermajority was openly hostile to the idea that the Fourteenth Amendment’s guarantee of equal protection for all extends to trans kids. But on Wednesday, in Montana, the state court unanimously affirmed an order temporarily blocking the ban on gender-affirming care from going to effect, finding that it likely violates the state’s constitutional right to privacy.
Montana’s supreme court sits apart from many other Montana institutions in that it has so far withstood attempts at conservative capture. (The court’s justices are selected via nonpartisan election, but court-watchers have observed that it leans liberal.) As emboldened rightwing legislatures threaten much of the country and federal courts abandon their constitutional commitments to marginalized people, the Montana ruling is a welcome reminder that some protections are still available under state law, and state courts can, sometimes, go farther than their federal counterparts.
The trans youths in Montana were well-served by their state constitution’s explicit protection of privacy. The document declares that an individual’s right to privacy is “essential to the well-being of a free society” and “shall not be infringed without the showing of a compelling state interest.” Montana courts have long interpreted this provision robustly, repeatedly affirming that the legislature has no interest in restricting the “fundamental privacy right to obtain a particular lawful medical procedure” unless it can clearly and convincingly demonstrate a “medically acknowledged, bona fide health risk.”
Here, the legislature did not contend that puberty blockers or hormones posed such a risk to minors. Instead, Justice Beth Baker wrote in Cross v. Montana, it “restricted a broad swath of medical treatments only when sought for a particular purpose.” In other words, the legislature’s problem is not with the medical treatment, but with trans people receiving treatment.
