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Missoula judge holds hearing on suit against bill restricting gender-affirming care for youth

SB 99 Court Hearing
SB 99 Court Hearing
SB 99 Court Hearing
SB 99 Court Hearing
SB 99 Hearing Outside
Posted at 9:07 PM, Sep 18, 2023

MISSOULA — On Monday, a district court judge in Missoula took about 90 minutes of testimony, as he considers whether to put a hold on Montana’s new state law restricting gender-affirming health care for transgender youth.

District Judge Jason Marks held a hearing on a motion seeking a preliminary injunction against Senate Bill 99. Plaintiffs – including several transgender youth, their families and health care providers – have sued, claiming the law violates fundamental rights.

SB 99 Court Hearing
District Court Judge Jason Marks held a hearing Sept. 18, 2023, in Missoula, as he considers whether to put an injunction on Senate Bill 99, Montana's new law restricting gender-affirming health care for transgender youth.

SB 99, sponsored by Sen. John Fuller, R-Kalispell, passed the Legislature earlier this year and was signed by Gov. Greg Gianforte in April. It prohibits gender-affirming procedures, including hormone treatments and surgeries, for transgender people younger than 18 seeking to medically transition. It would threaten health care providers who do provide those treatments with a license suspension and legal liability.

Plaintiffs’ attorneys said this law would deprive youth of treatment that’s been found to be effective, and that the restrictions could put transgender youth at higher risk of mental health impacts, including higher risk of suicide. They said, for the young people involved in this case, alternatives hadn’t been successful, but gender-affirming treatment gave them a much improved quality of life.

“We’re not just talking about numbers or statistics, Your Honor, we’re talking about real people who are suffering real harms, and those people include people who are sitting in this room today,” said Malita Picasso, a staff attorney with the national ACLU.

SB 99 Court Hearing
Malita Picasso, a staff attorney for the ACLU, argued for a preliminary injunction against Senate Bill 99, Montana's new law restricting gender-affirming health care for transgender youth, during a court hearing in Missoula, Sept. 18, 2023.

Plaintiffs’ attorneys said SB 99 violated the individuals’ right to medical privacy and their parents’ rights to choose treatment options for them, and that it discriminated against transgender youth because similar procedures remained legal for those not seeking to transition.

Picasso said Monday that allowing the law to go into effect even for a day could cause irreparable harm, and that some families were considering leaving the state altogether.

“I can think of no better example of an irreparable injury than having to be forced out of your home state by your elected officials because they’re attacking your children,” Picasso said.

Attorneys for the Montana Department of Justice defended the law. On Monday, Michael Russell, an assistant attorney general, argued the Legislature’s action could be justified because of their legitimate interest in protecting minors, from what he said could be long-term and irreversible health effects.

“They have one shot at growing up,” Russell said. “This is what Montana wants to protect – they want to protect the kids from this experimentation, give them the chance to grow up and give them the right that they have to future autonomy to make this decision for themselves.”

SB 99 Court Hearing
Michael Russell, an assistant attorney general, argues against a preliminary injunction on Senate Bill 99, Montana's new law restricting gender-affirming health care for transgender youth, as Alex Rate of the ACLU of Montana looks on.

The state argued there is more disagreement about the effectiveness of gender-affirming care than the plaintiffs suggested. Russell said, if there’s still not full clarity in the studies and evidence on the issue, the judge should defer a decision and allow the law to go into effect ahead of a trial.

“In this area of unfolding medical and policy debate, the state has more, rather than fewer, options,” he said.

SB 99 Hearing Outside
Opponents of Senate Bill 99, Montana's new law restricting gender-affirming health care for transgender youth, gathered on the lawn outside the Missoula County Courthouse, Sept. 18, 2023, ahead of a hearing on whether the law should be put on hold.

Marks took no immediate action on Monday. He said he will issue an order next week – and he acknowledged that whichever way he rules, it's almost certain the decision will be appealed to the Montana Supreme Court.

Before the hearing, opponents of SB 99 gathered on the lawn in front of the Missoula County Courthouse. They placed signs reading “Trans people belong in Montana, and we’re happy you’re here!”

SB 99 Court Hearing
Rep. Zooey Zephyr, D-Missoula, a transgender woman, looks on during a hearing on whether Senate Bill 99, Montana's new law restricting gender-affirming health care for transgender youth, will be put on hold, Sept. 18, 2023.

Among those in attendance in the courtroom Monday was Rep. Zooey Zephyr, D-Missoula, a transgender woman. It was during a floor debate on SB 99 that Zephyr said Republican lawmakers would have “blood on their hands” for their vote – a comment that eventually led to Zephyr not being allowed to speak on the floor, to a disruptive protest at the Capitol and to Zephyr being barred from the House chamber.