Families and doctors challenge Montana’s ban on gender-affirming care for trans minors

Scarlet van Garderen has a long list of activities to look forward to during her senior year of high school in Belgrade. She’s slated to be the leader of the brass section in the school band where she plays French horn and mellophone. Participating in speech and debate club is on the horizon, too, plus frequent Dungeons and Dragons sessions with some of her friends.

The current junior, 16, has been taking dual-enrollment classes to earn college credit. During a May interview at a Belgrade park, she said she’d like to attend Montana State University in Bozeman after graduation to study computer science and music. 

But Scarlet, who’s transgender, also acknowledged how her future could change. If Montana bars her from accessing medical care that has helped her live as the girl she knows herself to be, she struggles to imagine how she could continue to live here.

“Having to move would completely screw up my entire life plan,” Scarlet said. 

The van Garderen family is one of several plaintiffs in a lawsuit announced Tuesday against Senate Bill 99, Montana’s new law banning gender-affirming medical care for transgender minors, which was signed by Gov. Greg Gianforte on April 28 and is set to go into effect Oct. 1. The complaint, filed in state district court in Missoula by the national American Civil Liberties Union, Lambda Legal, Washington state-based Perkins Coie LLP and the ACLU of Montana, argues the policy “represents vast government overreach and will cause untold harms” if allowed to take effect.

Scarlet’s parents, Jessica and Ewout, met in Emigrant in the 1980s and moved to Belgrade in 2005. The family loves the outdoor access around the Gallatin Valley (“You can go rock climbing, hiking and kayaking all in the same area,” Jessica and Scarlet said, nearly in tandem). They have a younger child in the local public school system, too. Moving would be hard for everyone, they said, but could bring a reprieve from the recent fixation on transgender regulations spearheaded by Republicans in the state Legislature. Ultimately the family decided to join the lawsuit instead. 

“We definitely looked around at options if it got really bad, but we couldn’t find a place that we liked better than here,” said Jessica, Scarlet’s mother. “So now we’re fighting to stay.”

LOCAL FIGHT WITH A NATIONAL BACKDROP

When Gianforte signed SB 99, titled the Youth Health Protection Act, Montana became one of 15 states to pass or enact similar legislation in recent years. The list expanded days later when Oklahoma joined the ranks. Some of the laws, including a 2021 Arkansas policy, have been challenged and blocked in court while litigation continues. 

The Williams Institute at the UCLA School of Law estimates that 500 transgender youth age 13-17 live in Montana, about .78% of the state’s population in that age group. Yet debates over gender-affirming health care and other civil rights have consumed state politics at the highest levels of government. Gianforte signaled his support for SB 99 in an April letter to lawmakers condemning “invasive medical treatments” for children and calling the phrase gender-affirming care “Orwellian Newspeak.” Weeks later, Republican lawmakers barred Rep. Zooey Zephyr, a Missoula Democrat and transgender woman, from parts of the House chamber for a speech she made against SB 99 and for raising her microphone toward protesters who later occupied the public gallery to support her.

Another prominent voice against SB 99 is that of Gianforte’s second-oldest child, David Gianforte, who came out as nonbinary in an April interview with Montana Free Press. David described their effort to lobby the governor to veto the ban and other legislation they said would negatively LGBTQ+ people, calling the bills “immoral, unjust, and frankly a violation of human rights.”

“We definitely looked around at options if it got really bad, but we couldn’t find a place that we liked better than here. So now we’re fighting to stay.”

Jessica  van Garderen

Like many such laws around the country, SB 99 bars the use of puberty blockers, hormone therapies and surgeries such as mastectomies and facial alterations to help patients better align their appearance with their gender identity. Some of the banned services have been recognized by leading U.S. medical institutions as safe and effective treatments that are included among best-practices for minors who struggle with gender dysphoria, a clinical diagnosis that some transgender and gender diverse people experience. The bill also prohibits the use of public funds for the banned medical care, including at out-of-state facilities, and threatens Montana providers who violate the law with disciplinary action from their licensing board, a one-year ban on practicing medicine and increased exposure to lawsuits from patients or their parents. 

Proponents, including the bill’s sponsor, Sen. John Fuller, R-Kalispell, say Montana’s legislation will help guard against medical interventions some minors may come to regret. More fundamentally, Fuller has rejected the legitimacy of transgender identity, calling it an “ideology” with “nothing scientific about it” during a February Senate debate. Other bill supporters who testified during public hearings characterized the treatments as child abuse, rhetoric that aligns with movements in Texas and Florida to investigate parents who condone gender-affirming care and allow for support of those treatments to factor into custody arrangements.

Transgender residents, their family members and health care providers opposed the Montana legislation for months, calling it discriminatory and an abuse of governmental power. They underscored research showing that youth who access gender-affirming medical care experience decreased rates of depression and suicidality. Many simply asked lawmakers to believe trans people when they say the medical services are important and help them live happier lives. 

One of those people was Jessica van Garderen. Testifying before lawmakers during a March committee hearing, she recounted the experience of watching her daughter struggle with her mental health and motivation. After Scarlet came out, Jessica said, the family tried talk therapy but it “barely made a dent” in the teenager’s depression and anxiety. Multiple referrals, consultations and evaluations lead the family to new options: puberty blockers and, later, hormone therapy. 

“Within a few weeks, I noticed changes in my daughter’s mood. Within a few months, she was smiling again. I’m happy to report she’s now thriving,” Jessica told the committee. “… Let’s face it. We are here today because some of you are uncomfortable looking at transgender people, so you are trying to make it harder for them to exist.”

‘TRYING TO PROTECT CHILDREN’

The van Garderens, a family from Missoula and two Montana medical providers are suing the state to permanently block SB 99 from going into effect. The lawsuit names Gianforte, Attorney General Austin Knudsen, state health department Director Charlie Brereton, the state Board of Medical Examiners and the Board of Nursing as defendants. 

The complaint focuses on the plaintiffs’ constitutional rights to equal protection, privacy, dignity, and health care and the right of parents to direct the upbringing of their children, all of which attorneys said are threatened by the looming law. 

The lawsuit argues that gender-affirming medical treatments are essential for some people with gender dysphoria, described as a strong discordance between gender identity and gender as assigned at birth. A person’s sense of their gender is “innate,” the attorneys say, and transgender youth cannot “simply turn off their gender identities like a switch.” Living without treatment for gender dysphoria, the suit continues, can put transgender people at increased risk of depression, anxiety, self-harm, substance use and suicidality, a phenomenon exhibited in marked disparities between transgender youth and peers without gender dysphoria.

Medical guidelines for treating minors with gender dysphoria have been established by WPATH, the World Professional Association for Transgender Health, and the Endocrine Society, the suit says — recommendations endorsed by the leading medical associations in the U.S. The treatments, including puberty blockers and testosterone or estrogen hormone therapies, are individualized for each patient and do not go beyond mental health therapy until a person reaches puberty, attorneys say. 

If the law is allowed to take effect, patients who currently receive hormone treatments or puberty blockers for gender dysphoria will be suddenly cut off from medical care, the lawsuit says, leading to significant distress, medical risk, and the likely return of acute mental health struggles. 

Under SB 99, the lawsuit notes, the named health care provider plaintiffs, Dr. Katherine Mistretta of Bozeman and Dr. Juanita Hodax, a pediatric endocrinologist from Washington state who also practices in Missoula, would be allowed to continue providing hormone treatments and puberty blockers to minors for myriad reasons, including early onset puberty or delayed development. The only patients that would be denied care would be transgender patients seeking treatments related to a gender transition. 

Fuller, the bill’s sponsor, has previously denied any intention to discriminate against a specific group of people, maintaining that SB 99 seeks to protect all children who might be considering gender-affirming medical interventions. 

“To claim discrimination is easy, but legally speaking I think they’re going to have a difficult time proving it,” Fuller told Montana Free Press in a March interview. “I recognize that hyperbole is the coinage of this game known as politics, but I take exception to [the suggestion] that I’m trying to harm a particular group of people. I’m not. I’m trying to protect children.”

Attorneys for the plaintiffs nonetheless argue the law is discriminatory against transgender minors by singling out those who pursue medical treatment for gender dysphoria. The lawsuit goes on to cite multiple examples in which attorneys say lawmakers “ignored testimony” from medical providers, transgender youth and adults, and parents of trans minors, including comments from one legislator, Sen. Daniel Emrich, R-Great Falls, who suggested that gender dysphoria is a cognitive dissociative disorder. The complaint also takes issue with lawmakers’ repeated descriptions of transition-related medical care as “mutilation” and “disfigurement.”

“These restrictions, only affecting transgender people, serve no legitimate purpose. They do nothing to protect the health or well-being of minors. To the contrary, they gravely threaten the health and well-being of transgender adolescents by denying them access to lifesaving care, and evidence an intent to discriminate against transgender people,” the lawsuit says. 

‘I FEEL LIKE I HAVE A FUTURE NOW’

Sitting under a gray spring sky, Scarlet, Jessica and Ewout van Garderen described the frustration of facing Republican lawmakers’ unwillingness to understand their experiences. Some of their representatives from Belgrade never returned their emails and calls, Jessica said, even when the family offered to meet with them and explain why puberty blockers and hormone therapy have been so helpful to Scarlet. Instead, the family said, they spent months watching a legislative agenda advance based on opinion instead of fact and lived experience.

“Your opinion doesn’t really matter to me, you know?” Ewout said of lawmakers. “If you don’t have experience in the field, if you’re not a doctor, I don’t want to hear your opinion on what my kid should or should not be able to do. That’s between us and our doctor.”

Scarlet said she feels the positive impact of the medication in her daily life. After about a year of hormone treatments, she’s becoming more comfortable in her own skin, feeling safer in her body and able to leave her room and engage with the rest of the world.

“It’s just been so helpful for my mental health. I actually want to talk to people now because before I was like so reserved and closed off,” Scarlet said. “Now I’m at like every basketball game and volleyball game with the band, having a lot of fun. I’m going to be a section lead. Without this care, none of that would have ever happened.”

Jessica and Ewout said the treatments for Scarlet’s gender dysphoria have brought hope back into their house. Instead of being afraid to leave their teenager in her room with the door closed, they know her mental health is improving every day.

“Before, I couldn’t find the hope,” Scarlet said. “But now it’s like, so much different. I feel like I have a future now.”

When SB 99 was poised to pass the Legislature, the family was weighing the likely impact of the legislation and expecting that lawsuits would follow. But when they realized that plaintiffs with firsthand experiences would help the case advance, the van Garderens said they began to see themselves as critical to the legal fight. 

“I think we were all hoping that other people would step up and do it,” Jessica said. “But we couldn’t just sit back … I mean, she’s not going to go off her medication. It’s a prescription from her doctor and it’s working.”

This article was updated May 9, 2023, to clarify a statistic about transgender youth in Montana.

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