A Montana law protecting minors from gender transition procedures will remain on ice after the state Supreme Court ruled against it on Wednesday. In the decision (Cross v. State), joined by six out of seven justices, the court upheld a lower court ruling that the law infringed upon an individual right to privacy found in the Montana constitution.

In contrast to most lawsuits challenging laws protecting minors from gender transition procedures, the Montana lawsuit, brought by the pro-trans activists at the ACLU and Lambda Legal, did not challenge the state law under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Instead, it challenged the law under two provisions of the Montana constitution, one dealing with equal protection and one dealing with a right to privacy. In their opinion, the state Supreme Court only considered the privacy clause.

Article II, Section 10 of the Montana Constitution stipulates, “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” This is roughly equivalent to the U.S. Supreme Court’s test for strict scrutiny, the highest constitutional test available, reserved for the most fundamental rights.

As a result, the Montana Supreme Court has previously ruled that this privacy right applies to a person “mak[ing] medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider” and affords protection for the person’s privacy that “exceeds even that provided by the federal constitution.” (Of course, the U.S. Constitution makes no mention of a right to privacy, and the judicial tradition that imagined one suffered a heavy setback with the overturn of Roe v. Wade.)

In fact, the court ruled that, under this right to privacy, the state legislature had to demonstrate a “medically acknowledged, bona fide health risk, clearly and convincingly demonstrated,” in order to regulate a practice.

The state protested that there were exceptions to this rule, but the court’s opinion held those exceptions to be extremely narrow.

For these reasons, they upheld the lower court’s preliminary injunction against the Montana law. By so doing, “the [Montana] Supreme Court put the well-being of children — who have yet to reach puberty — at risk by allowing experimental treatments that could leave them to deal with serious and irreversible consequences for the rest of their lives,” declared Chase Scheuer, a spokesman for the office of Montana Attorney General Austin Knudsen (R).

The court’s decision relied heavily on their earlier precedent that broadly construed a right to privacy in the medical context, but the justices made little effort to distinguish this case or acknowledge the evidence Montana put forward of the harm to children gender transition procedures can cause. In fact, they also evidenced an ideological bias in citing the following bizarre definitions from the lower court:

“At birth, infants generally are assigned a sex, as the District Court wrote, ‘based on their external genitalia, internal reproductive organs, and chromosomal makeup.’ ‘Sex’ is a ‘distinct biological classification,’ which ‘makes us male or female.’”

What makes us male or female is not an arbitrary “classification,” but a fundamental reality, rooted in the created order.

Six out of seven justices on the Montana Supreme Court joined the majority of the opinion, which was written by Justice Beth Baker. Justices Laurie McKinnon and Ingrid Gustafson wrote a concurring opinion that argued the court should also have addressed the equal protection issue.

The only member of the court to not fully join the majority was Justice Jim Rice. He concurred with the court’s ruling on medical procedures but dissented on one provision in the state law that removed gender transition procedures from state Medicaid because “there is no current federal mandate for Medicaid funding of gender-affirming care” and because “funding decisions fall within the Legislature’s primary constitutional duty.”

In contrast to some state court systems, justices in Montana are elected. Therefore, if Montana voters are unhappy that their Supreme Court ruled against a law that passed the legislature overwhelmingly, they can take matters into their own hands and vote those justices out of office. State Supreme Court elections will feature in 2025 in other important states, including Wisconsin and Pennsylvania, where there is at least a chance of passing a law protecting minors from gender transition procedures.

Because the Montana Supreme Court only ruled against the Montana SAFE Act on a preliminary basis, the case now returns to the lower court for a bench trial. The trial will be conducted before District Court Judge Jason Marks in Missoula.