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Montana’s highest court blocked a duly enacted ban, while a Missouri judge allowed a similar law to take effect — proving that the U.S. Supreme Court needs to bring constitutional clarity as soon as possible.
The Supreme Court will soon decide whether state’s have the constitutional authority to ban so-called “gender affirming treatments” in children and teens, but that hasn’t stopped state courts from ruling on the issue.
The Supreme Court heard arguments earlier this month in the case of United States v. Skrmetti, in which the Biden administration sued the states of Tennessee and Kentucky over their bans on gender transitions for minors.
Currently, 26 states have passed laws restricting gender transitions for minors.
Courts across the nation have ruled very differently on whether or not states have the authority to regulate drugs and surgeries for gender-confused minors. Some have found that the laws are constitutional because state legislatures often pass legislation putting guardrails around medical procedures and practices, especially those considered controversial and dangerous. Other courts believe that the laws discriminate against transgender minors or violate the right to privacy.
Last week, for example, the Montana Supreme Court unanimously upheld a lower court decision blocking the state’s ban on gender transitions for minors.
All seven members of the court ruled that the law stops a person from pursuing medical treatment that they have agreed to try and a medical professional believes is in their best interest.
Writing for the majority, Justice Beth Baker wrote that the law didn’t prohibit the use of puberty blockers for all conditions but only prohibited their use in children who want to change their gender.
It is important to note that puberty blockers were never approved by the Food and Drug Administration (FDA) for the purpose of gender transitions ,and it has placed a warning on the drugs because they can cause brain swelling.
The case will now go to trial before Missoula County Circuit Court Judge Jason Marks, the same judge who previously blocked the law.
Attorney General Austin Knudsen’s office reacted to the ruling by saying, “The Supreme Court has abandoned Montanans once again to rule in favor of their out-of-state political allies.”
He added, “In upholding the district court’s flawed decision to temporarily block a duly enacted law, the Supreme Court put the wellbeing 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 to continue.”
By contrast, Missouri Circuit Court Judge R. Craig Carter ruled that the state does have the right to restrict gender transitions in minors.
In a decision issued last month, Judge Carter wrote that there is wide dispute about the proper treatment for gender dysphoria and whether gender transitions are effective or ethical. He stated,
“This Court finds an almost total lack of consensus as to the medical ethics of adolescent gender dysphoria treatment. The evidence presented at trial showed severe disagreement as to whether adolescent gender dysphoria drug and surgical treatment was ethical at all, and if so, what amount of treatment was ethically allowable.
One example of the many confused medical ethics issues described at trial runs like this: Gender dysphoria is classified as a mental disorder. Generally, western medicine treats mental disorders by actually treating the mental aspect, like prescribing Zoloft to treat depression.
However, the gender dysphoria treatment prohibited by Missouri uses drugs and surgeries to either inhibit normal healthy human growth or surgically remove and replace healthy human organs. Such an approach to treatment is well outside normal medicine, and medical ethicists are unable to agree on the propriety thereof.”
Judge Carter wrote that the court was presented with many binders of evidentiary documents such that they “were piled so high on the bench that the Court’s vision was at times obscured.”
Yet, in all the thousands of pages of documents presented, certain realities came through which factored heavily into Carter’s ruling.
One of those key points was that studies have shown that as many as 98 percent of children will have their gender dysphoria desist if medical intervention is not pursued. Also key in his ruling was the fact that there is no evidence to support gender transitions. All studies that claim to support gender transitions are rated as poor quality.
“Every systematic review to assess these interventions has concluded that there is no good evidence that they are safe or effective,” Carter ruled. In his opinion, he cited the Cass Review, a landmark U.K. study that found no benefit to gender transition treatments in minors, and testimony from detransitioners like Chloe Cole and whistleblower Jamie Reed, which show significant harms done by clinics who use these treatments on children.
It was Reed, who is married to a transgender, who helped spur Missouri’s law. Reed worked for the Washington University Transgender Center at St. Louis Children’s Hospital where she witnessed massive numbers of children pursuing gender transitions. In many cases, these children had mental health issues that were going untreated, and the clinic even prescribed puberty blockers and cross-sex hormones on children’s first visits.
It was after two doctors gave false testimony to the Missouri General Assembly in April 2022, claiming that gender transition surgeries were not being performed on those under 18, that Reed issued an affidavit. Her testimony led to Missouri’s passage of the Save Adolescents from Experimentation (SAFE) Act, which bans gender transitions in minors until 2027.
Judge Carter rejected all the plaintiffs’ arguments, including that there is a substantive due process right to obtain such medical treatments.
“Consider how strange it would be to conclude that there is a substantive due process right to obtain an intervention that the legislature had taken off the table,” he wrote. “It would mean that legislatures could never regulate any drug or medical procedure. Any person—including a minor—would be able to obtain anything from meth, to ecstasy, to abortion so long as a single medical professional were willing to recommend it.”
He cited that the U.S. Court of Appeals for the Sixth Circuit has upheld Tennessee and Kentucky’s bans, the Eleventh Circuit has upheld Alabama’s ban, and the Seventh Circuit has upheld Indiana’s ban. While a panel of judges for the Eighth Circuit ruled Arkansas’s law unconstitutional in 2022, the court will rehear the case en banc, or by all 11 judges.
Missouri Attorney General Andrew Bailey praised the ruling in a press release, saying,
“The Court has left Missouri’s law banning child mutilation in place, a resounding victory for our children. We are the first state in the nation to successfully defend such a law at the trial court level. I’m extremely proud of the thousands of hours my office put in to shine a light on the lack of evidence supporting these irreversible procedures. We will never stop fighting to ensure Missouri is the safest state in the nation for children.”
On the same day that Montana’s Supreme Court interfered with the ability of the state legislature to protect children from the harms of gender transitions, the U.K. extended its ban on puberty blockers and cross-sex hormones indefinitely. It cited the lack of any evidence prescribing drugs to children for gender incongruence is beneficial; instead, all evidence points to the reality that such treatments actually cause harm, many of them irreversible.
The Montana Supreme Court had access to the data that the U.K. has painstakingly reviewed and relied on to ban the use of these off-label medications and surgeries in gender-confused children. They also likely knew of the numerous other European nations that have halted gender transitions in minors.
And yet, somehow, all seven of those judges came to a decision that fails to grasp the medical scandal that is so-called “gender affirming care.”
Judge Carter also had access to the same evidence, but he used it to make a correct ruling. Look at how he explained some of the detrimental effects of gender transition treatments in his ruling,
“Plaintiffs’ expert Dr. Shumer testified that there are harms whenever a person is provided ‘supraphysiological’ levels of hormones. That is what cross-sex hormones do. They elevate a person’s hormones to 10 to 20 times what that person’s healthy body is able to produce or sustain. This increases risks of premature mortality, hypertension, cardiovascular disease, and cancer, among other things. As Dr. Levine testified, the life expectancy for individuals who have received these interventions is 10 to 20 years shorter−although causality on this issue is difficult to measure. And because individuals receiving cross-sex hormones cannot naturally produce hormones in the same levels as members of the opposite sex, individuals taking cross-sex hormones must be medicalized for life to maintain those hormonal levels.”
That doesn’t even include the harms of using drugs to “skip” puberty and surgeries to cut off healthy body parts.
As medical ethicist Dr. Farr Curlin explained in the trial, gender dysphoria is a “disorder of perception.” The patient’s body is healthy; it is their mind that needs treatment.
Judge Carter wrote,
“This is important because medicine takes the well-working of the human body as its standard. For example, when a person perceives that he is fat when he is not, that perception is the disorder, and the perception is treated. However, with gender dysphoria, the medical and surgical treatments that are prescribed and performed are hostile to the well-working of the human body…in order to fix the perception. In Dr. Curlin’s opinion, this is an outlier practice that is outside important medical norms.”
So-called “gender-affirming treatments” aren’t medicine. They are Frankensteinian experiments driven by ideology and greed. Rather than help these young people who have a problem in their mind that needs to be treated, the medical establishment is neglecting their mental health problems and placing them on a lifetime of harmful and expensive medical treatments that do nothing to fix their problems.
Hopefully, the Supreme Court will have the wisdom that Judge Carter had when he wrote his opinion and rule that states do have the authority and the responsibility to protect children from these atrocities.
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