State files Supreme Court brief in appeal of injunction blocking gender-affirming care ban

Attorneys for the Gianforte administration filed their brief Friday in their Supreme Court appeal of a district court judge’s decision last year that blocked the ban on gender-affirming care for Montana children the governor signed into law last spring.

In the 61-page filing, attorneys for the Montana Attorney General’s Office told the Montana Supreme Court that Missoula County District Court Judge Jason Marks had erred in his decision following the preliminary injunction hearing in which he sided with the plaintiffs despite the state’s assertion it has a compelling interest in protecting children by banning them from seeking puberty blockers and other initial treatments for gender dysphoria.

“Defendants demonstrated that the harms of ‘gender-affirming’ treatments outweigh the harms alleged by plaintiffs. If the state is prevented from enforcing SB99, the irreparable harm to Montana’s children and families will continue unabated. More children will begin taking puberty blockers and cross-sex hormones and experience severe health problems as a result,” the filing says. “And more children will be permanently sterilized. Enjoining SB99 irreparably damages those children’s lives and the state’s ability to prevent that harm.”

Marks enjoined Senate Bill 99 last September, days before it was set to take effect Oct. 1, finding the bill passed by the Republican supermajority Legislature would put transgender youth in Montana “at risk of facing severe psychological distress if they are blocked from receiving such care.”

The plaintiffs include doctors who provide gender-affirming care, transgender minors and their parents, who argued the new law created by SB99 violates the right to privacy and equal protection clauses under the state constitution.

In his September decision, Marks wrote that the state’s purported purpose for SB99 was “disingenuous”: “It seems more likely that the SB99’s purpose is to ban an outcome deemed undesirable by the Montana Legislature veiled as protection for minors.”

In the appeal, the state argues that the Supreme Court should find the plaintiffs did not meet the new standard for injunctions passed by the legislature this past year; that Marks used the wrong level of scrutiny in the case; that the health care providers who are plaintiffs lack standing in the case; and that Marks should have sided with the state’s witnesses and data over those from the plaintiffs.

The state claims that most children who experience gender dysphoria “grow out” of it by the time they are adults, a claim that the plaintiffs and the science and data they cite in their briefs say is false.

But the state uses that data to say that rather than teenagers receive gender-affirming care like puberty blockers, they should practice “watchful waiting” and go to therapy. The state contends that gender-affirming care is not safe and says there is no evidence it improves a person’s health outcomes.

The Supreme Court brief says it is also impossible for a child to understand how they will feel in the future as an adult, and that receiving gender-affirming care, even after consultation with parents and doctors, should not be allowed for anyone under 18.

The filing says Marks had “uncritically” accepted plaintiffs’ assertions about the medical community’s feelings on gender-affirming care and disregarded the state’s “extensive evidence demonstrating widespread medical and scientific uncertainty.”

It says Marks should not have blocked all of SB99 because the plaintiffs only alleged harm by some of its provisions; attorneys argue he lacked the jurisdiction to block the entire bill. The state also argues that the health care providers, who had argued against the bill’s provisions that open providers up to professional punishment or malpractice lawsuits for providing gender-affirming care, lack standing in the case.

The brief argues that if the gender-affirming treatments are as safe as the professionals claim them to be, they should have no fear of a malpractice lawsuit. It also says they are not in a close enough relationships with their patients to suffer an injury from SB99, and that they have “a financial incentive to facilitate the lifelong medicalization of their patients.”

The attorneys wrote SB99 cannot be discriminatory based on a person’s gender status because not all trans-identifying children seek gender-affirming care, and because the law applies to all minors.

“No minor—regardless of sex—can obtain the experimental treatments to transition. It applies evenly across the board. A plain reading of SB99 demonstrates that it neither discriminates based on sex nor implicates sex as a protected class. SB99 addresses surgeries, cross-sex hormones, and the use of puberty blockers in an equivalent manner with respect to both sexes,” the brief says.

The state is unhappy with Marks’ decision to side with the plaintiffs’ experts and data — which showed gender-affirming care was the standard treatment for gender dysphoria — instead of theirs, and said he “failed to employ conscientious judgment by completely disregarding defendants’ extensive evidence to the contrary.”

The state’s brief claims that statistically, “plaintiffs themselves are overwhelmingly likely to desist” from gender dysphoria, adding: “The reality is that there is a substantial amount of evidence from all over the world that gender transition procedures do not, in fact, alleviate gender dysphoria, but instead lead to exacerbated mental health problems and even more significant distress.”

The state argues that it will be the one suffering harm because its citizens will “experience severe health problems” as a result of receiving gender-affirming care.

“Despite profound medical and scientific uncertainty surrounding the safety and efficacy of so-called ‘gender-affirming’ care, proponents and providers continue ushering ill-informed children and their families toward serious adverse and lifelong physical, mental and emotional consequences,” the state’s filing says. “By enacting SB99, the state chose to exercise its police power to safeguard the mental and physical wellbeing of its current generation of children and those to come.”

The plaintiffs in the case, represented by the ACLU of Montana, ACLU Foundation, Lambda Legal Defense and Education Fund, and Perkins Coie, will have the opportunity to issue a reply brief to the court responding to the state’s appeal, after which a hearing date for arguments would likely be set in the case.

“Despite radical organizations and their attempts to prevent this commonsense law from going into effect, I remain committed to protecting Montana’s children,” Gov. Greg Gianforte said in a statement.

Blair Miller is a reporter based in Helena. The Daily Montanan is a nonprofit newsroom. To read the article as originally published, click here.