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.
Image of a crowd protesting for trans rights; photo by Marvin Joseph/The Washington Post via Getty Images
Montana’s privacy protections do not have a precise textual analogue in the U.S. Constitution. In Griswold v. Connecticut, a 1965 case about a law that banned married couples from using contraception, the Supreme Court recognized the right to privacy as implied by other specific constitutional guarantees. Federal constitutional rights don’t need to be explicit—the Ninth Amendment says that the Constitution’s enumeration of “certain rights” does not mean that others are not “retained by the people”—but that didn’t stop the Supreme Court from crowing that privacy and abortion are “not mentioned in the Constitution” when it overturned Roe v. Wade.
The Montana youths also challenged the gender-affirming care ban on equal protection grounds, which the ruling didn’t address, instead finding that the lower court’s conclusions about privacy were enough of a basis to affirm on their own. Still, Justice Laurie McKinnon authored a concurring opinion, joined by Justice Ingrid Gustafson, that chided her colleagues for their avoidance of the equal protection argument and validated the trans kids’ claim.
Montana’s equal protection provision goes further than the Fourteenth Amendment, including specifically prohibiting sex discrimination. McKinnon argued that the court should recognize this explicit prohibition on sex discrimination as including discrimination on the basis of transgender status. “Transgender discrimination is, by nature, sex discrimination,” she said. McKinnon also warned the court’s current silence carries risks: “By declining to engage with this question now, we leave this critical definition open to lock-stepping by complicity in whatever direction the United States Supreme Court decides to take.”
Cross v. Montana is clear: The state has its own constitution and its own courts, and it does not need to follow the U.S. Supreme Court off a cliff. The Montana court instead cited several of its previous rulings which reaffirmed that the state’s privacy and equal protection provisions go beyond those of the U.S. Constitution. The state’s distinct legal traditions—and its judges actually willing to follow them—have allowed the court to repeatedly act as a bulwark against an array of Republican attacks on residents’ rights. State courts and constitutions are not a cure-all, to be sure, but this case shows they can be an important salve—and help get some trans kids the treatment they need.
