Michael Russell with the Montana Attorney General’s Office argues in favor of Senate Bill 99 and against a preliminary injunction. (Keila Szpaller/The Daily Montanan)
Two high school boys walk into a doctor’s office seeking prescriptions for testosterone.
Phoebe Cross is a transgender boy wanting to effectively treat gender dysphoria, and Billy is a teen who wants to play football and heard testosterone might make him taller.
Senate Bill 99 treats those people differently, said Malita Picasso, a lawyer with the ACLU Foundation who offered the comparison in Missoula County District Court on Monday.
“Billy would be permitted to access this care because he was assigned male at birth, whereas Phoebe would be denied access to this care solely because he was assigned female at birth,” Picasso said.
That means SB 99 discriminates, but it isn’t the only problem with the law, Picasso argued.
Picasso made the analogy Monday afternoon during arguments over whether a judge should grant a preliminary injunction to effectively halt the law until a final order in the lawsuit.
After arguments, Judge Jason Marks said he plans to issue a ruling next week and then start working on a schedule for a trial he anticipates will be lengthy.
The hearing packed the gallery in the small courtroom of the Missoula County Courthouse, and those in attendance included former state Sen. Diane Sands and current Rep. Zooey Zephyr, both Democrats of Missoula.
In the lawsuit, Phoebe Cross and other plaintiffs allege the State of Montana is violating their rights through SB99, which bans “medical treatments and procedures when, and only when, they are provided to transgender youth for the purpose of treating gender dysphoria.”
But on behalf of the State of Montana, Michael Russell argued that if the law goes away, children will be harmed. At the same time, Russell said that if the court does grant a preliminary injunction, it should be limited to the harms it finds credible.
Russell said the science around care for gender dysphoria is still emerging, as evidenced by some backtracking in Europe. He also said the law protects youth from a life-altering decision “they cannot possibly comprehend.”
The FDA hasn’t even approved some of the drugs for these purposes, Russell said. Plus, he said in some cases, people who decide to transition change their minds.
He pointed to a patient who had a double mastectomy and later decided she was at peace with being a woman — but Russell said she’ll still never breastfeed.
Without the law, children are placed in jeopardy, Russell said. He said they are trapped in an identity formed in childhood before they have the chance to go through adolescence.
“The kids of Montana deserve better,” Russell said. “They have one shot at growing up. This is what Montana wants to protect. They want to protect the kids from this experimentation.”
Russell also argued that without the benefit of discovery, the court is limited in what it can conclude. He pointed to similar lawsuits in other states and said a preliminary injunction shouldn’t be a given.
“There’s a significant split among courts, and it’s not a settled issue,” Russell said.
Picasso, however, said the state of Montana is unique in a way that’s critical to this lawsuit. The Montana Constitution affords citizens a privacy right, “the right to be let alone.”
She said that right includes the right to medical decisions, and it covers youth as much as it does adults.
“This is one of the strongest fundamental rights to privacy in the country, and its protections far exceed those afforded under the federal constitution,” Picasso said.
She also said a different law, Senate Bill 442, does allow care for minors that’s not approved by the FDA. Nonetheless, she said the FDA acknowledges that medication permitted for general use by its standards is also safe for other purposes.
Phoebe Cross lived in anguish when his condition was untreated, Picasso said, and gender affirming care “quite literally saved his life.”
“We’re talking about real people who are suffering real harms, and those people include people sitting in this court today,” Picasso said.
In requesting the preliminary injunction, Picasso said the plaintiffs simply want the court to maintain the status quo, to continue to let children receive care supported by overwhelming medical consensus in the U.S.
Russell, however, said the state doesn’t leave plaintiffs without recourse. He said the state has an interest in protecting the health of minors, and the law doesn’t prevent care after the age of 18.
“Ultimately, this is policy disagreement,” he said.
Meanwhile, citing a separate case, Russell said the people of Montana made their choice through their representatives in the legislature: “Some choices are not for the judiciary.”
The defendants are represented by the Montana Attorney General’s Office and the Jones Law Firm, according to the initial complaint. Plaintiffs are represented by the ACLU of Montana, ACLU Foundation, Lambda Legal Defense and Education Fund, and Perkins Coie.
After the hearing, Phoebe Cross, one of the plaintiffs in the lawsuit, said he thought his lawyers did well representing his case in court. He said the state tried to illegitimize transgender pain, and his lawyers refuted the argument.
Cross also said he doesn’t have plans at this point to leave Montana, although one of his lawyers said it’s a possibility for some youth.
“It’s certainly something that I’ve had to think about a lot,” Cross said. “I have all the people I love here and all my connections. If it does get really bad, it’s something that I will have to consider, unfortunately.”
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