Case: Van Garderen v. Montana

This case centers around SB 99, a bill that bans evidence-based gender-affirming care for transgender minors in Montana but does not ban those same treatments for cisgender minors. The bill was set to go into effect on October 1, 2023. On May 9, 2023, two families with transgender youth—who have been diagnosed with gender dysphoria and are currently receiving gender-affirming care—and two medical providers, represented by the ACLU and Lambda Legal, filed suit in Montana's district court for Missoula County against the state of Montana and various state officials, challenging SB 99. Plaintiffs alleged that SB 99 violated their rights under the Montana Constitution, including the right to equal protection, the right of parents to direct the upbringing of their children, the right to privacy, the right to seek health, the right to dignity, and the right to freedom of speech and expression. Plaintiffs sought declaratory and injunctive relief, and attorneys’ fees. 

This case was assigned to Judge Shane Vannatta. However, on June 12, 2023, defendants moved to substitute the judge, and the case was reassigned to Judge Jason Marks on June 14, 2023. Clearinghouse is unable to determine why defendants moved to substitute the judge, but it is notable that Judge Shane Vannatta is the first openly gay judge to serve in the state of Montana.

On July 17, 2023, plaintiffs filed a motion for preliminary injunction, asking that the court enjoin defendants from enforcing SB 99 while the case proceeded. The court heard oral argument on September 18, 2023, and Judge Marks ruled on plaintiffs’ motion on September 27, 2023. Applying strict scrutiny, Judge Marks found that SB 99 likely violated the plaintiffs’ right to equal protection under Montana’s state constitution. Because the Montana Supreme Court has not yet ruled on what level of scrutiny to apply to equal rights claims brought on the basis of gender or sex, Judge Marks also analyzed the merits of plaintiffs’ equal rights claim using both middle-tier scrutiny and rational basis review. Judge Marks found that plaintiffs were likely to succeed on their claim even applying these lower levels of scrutiny. The court also found that plaintiffs were likely to succeed on their right to privacy claim. Finally, Judge Marks found that plaintiffs would suffer irreparable harm absent a preliminary injunction in two ways. First, the violation of plaintiff’s constitutional rights would constitute an irreparable harm. Second, plaintiffs had demonstrated that denying transgender youth access to gender-affirming care would place them at risk of severe psychological distress. The court found defendant’s argument that the ban was necessary to protect the health and safety of transgender youth unpersuasive, considering that the gender-affirming care at issue was the widely accepted best practice within the medical community, and the ban did not proscribe the treatments for cisgender minors. For these reasons, Judge Marks granted plaintiffs’ motion and issued a preliminary injunction, enjoining defendants from enforcing SB 99, which would have gone into effect on October 1, 2023.

On September 29, 2023, defendants appealed the district court’s decision to the Supreme Court of Montana. On December 11, 2024, Justice Beth Baker, writing for the majority, upheld the preliminary injunction, finding that plaintiffs had standing to challenge this law and that the plaintiffs had a “high likelihood of success on both the state constitutional equal protection and right to privacy claims.” 560 P.3d 637. On the right to privacy claim, the Court found that the state did not prove by clear and convincing evidence that the treatments prohibited by SB 99 were a “bona fide health risk,” and thus SB 99 infringed on an individual right to make their own medical judgments. The majority upheld the injunction on the basis of the right to privacy and did not further discuss the equal protection claim. 

Justice Laurie McKinnon, concurring, argued that the majority should have addressed the equal protection claim, and that both the right to be free from discrimination and the right to privacy implicated in this case should trigger strict scrutiny review. She additionally argued that the Court should hold that transgender status is in itself a suspect class that triggers strict scrutiny. On the other hand, Justice Jim Rice, concurring in part, highlighted the shifting legal landscape around trangender care and argued that the Court should reverse the district court’s enjoinder specifically of SB 99’s prohibition on funding gender-affirming care.

On September 10, 2024, the district court granted one of the plaintiff families voluntary dismissal from the case. On January 15, 2025, both parties filed cross-motions for summary judgment. On March 18, 2025, the court ordered supplemental briefing on the freedom of speech and expression claim raised briefly by the plaintiff in their motion for summary judgment. 

On May 13, 2025, the district court granted plaintiffs’ and denied defendants’ motion for summary judgment, permanently enjoining SB 99. The district court found that SB 99 infringed on the right to privacy and equal protection under the Montana constitution and the freedom of speech under both the Montana and U.S. Constitutions. By silencing medical providers from informing patients of gender-affirming care, SB 99 infringed on both medical providers’ right to free speech and patients’ “right to know” under the Montana Constitution.

The court evaluated all three claims using strict scrutiny review. Like the Montana Supreme Court, the district court found that the defendants failed to show that gender-confirming care constitutes a “medically acknowledged, bona fide health risk” that would have provided a safe harbor triggering lesser review for infringements on the right to privacy. The defendants also failed to show that SB 99 satisfied a provision of the Montana Constitution allowing lower scrutiny for laws protecting minors. On the equal protection claim, the district court found that both the “sex-based classifications” at issue and “transgender status” as a suspect class triggered strict scrutiny. On the freedom of expression claim, the court found SB 99 imposed impermissible content-based viewpoint discrimination that triggered strict scrutiny. 

The district court found that SB 99 failed strict scrutiny on all three counts. The defendants failed to provide evidence that SB 99’s stated purpose of protecting minors from “pressure” to receive gender-affirming care, off-label medication use, and “regret” were compelling government interests. In particular, the court emphasized that protecting a minority of minors that ultimately detransitioned did not justify withholding treatment from the majority. In addition, SB 99 was not narrowly tailored to achieve said purpose because it was both over- and underinclusive. It was underinclusive because similar concerns exist with other, unbanned, medical treatments provided to minors. It was overinclusive because the state’s provided reasons did not justify a blanket ban of gender-affirming care to transgender youth. 

On June 25, 2025, the plaintiffs moved to be awarded attorneys’ fees and costs. On July 11, 2025, the defendants moved under Rules 60(b)(2), (5), and (6) to set aside the judgment. The court denied the defendants’ Rule 60(b) motion on December 8, 2025. On the 60(b)(2) motion, the defendants offered new evidence in the form of a letter from the U.S. Secretary of Health and Human Services (HHS) establishing the official position of the federal government, two studies, and closures of clinics providing health services to transgender youth. The court found that this evidence was largely available and had been conveyed to the court before it issued its May 13, 2025 order, and was otherwise not sufficiently material to produce a different result. On the 60(b)(5) motion, the defendants argued both a change in factual and legal conditions had occurred. In particular, they relied on the Skrmetti opinion from the U.S. Supreme Court as a change in law. However, the court found that Skrmetti had no bearing on the Montana constitutional law at issue in this case. The court rejected the catch-all 60(b)(6) motion as impermissible when other motions had been made under 60(b).

The defendants filed a second Rule 60(b)(2) motion on December 12, 2025, which the court again denied on February 12, 2026. The defendants based their motion on a new supplement to the federal HHS report already in evidence, which the court found was not sufficient to show this was an “extraordinary” case meriting 60(b) relief. The court directed defendants to stop filing 60(b) motions and instead appeal to the Montana Supreme Court for relief from judgment. 

The court granted plaintiffs attorneys’ fees and costs on March 5, 2026.

As of March 13, 2026, this case is ongoing.