HHS Issues Guidance On Defining Gender-Based Terms

On Wednesday, the Department of Health and Human Services issued a release titled "Defining Sex: Guidance for Federal Agencies, External Partners, and the Public Implementing Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." (full text). The 1½ page memo says in part:

There are only two sexes, female and male, because there are only two types of gametes. An individual human is either female or male based on whether the person is of the sex characterized by a reproductive system with the biological function of producing eggs (ova) or sperm....

Recognizing the immutable and biological nature of sex is essential to ensure the protection of women’s health, safety, private spaces, sports, and opportunities. Restoring biological truth to the Federal government is critical to scientific inquiry, public safety, morale, and trust in government itself.

The Release goes on to define the terms "sex", "female", "male". "woman", "girl", "man", "boy", "mother", and "father",

ED's Title IX Rule Violates 1st Amendment

 In Carroll Independent School District v. U.S. Department of Education, (ND TX, Feb. 19, 2025), a Texas federal district court invalidated the Department of Education’s rule that interprets Title IX as prohibiting discrimination based on sexual orientation and gender identity. The court had previously issued a preliminary injunction barring enforcement of the rule against plaintiff school district.  The court now permanently vacates the Rule, finding, among other things, that it violates the First Amendment. The court said in part:

Because “misgendering” could, under this broad standard, constitute hostile environment harassment, teachers will “assume they should use subjective gender terms to avoid discipline under the Final Rule.”

As a consequence, recipients of Title IX funds, including teachers, are forced “to be an instrument for fostering public adherence to an ideological point of view [they] find[] unacceptable.”... The Final Rule functionally turns recipients of federal funds into federally commandeered censors of speech, forcing schools to require engagement in or, at a minimum, to prohibit certain kinds of speech, which in turn represses what has long been regarded as protected forms of expression and religious exercise.

ADF issued a press release announcing the decision.

Court Issues TRO Barring Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, Feb. 14, 2025), a Maryland federal district court set out its reasons for issuing a nation-wide temporary restraining order barring enforcement of the sections of two Executive Orders that prohibit federal funding for institutions that provide gender affirming care for patients under 19 years of age. At issue are provisions in Executive Order 14168, titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government and in Executive Order 14187, titled Protecting Children from Chemical and Surgical Mutilation. The court said in part:

Defendants admit in the very first line of their response in opposition to the motion for a TRO that the President "issued two Executive Orders directing agencies to take steps, as permitted by law, to condition certain federal grant funding on his policy preferences."23 ECF 55, at 3. This is a clear violation of the Constitution as "attempt[s] [by the Executive Branch] to place new conditions on federal funds [are] an improper attempt to wield Congress's exclusive spending power and is a violation of the Constitution's separation of powers principles."....

Because the challenged portions of the Executive Orders are facially discriminatory on the basis of transgender identity, and therefore sex under Kadel and Bostock, in violation of Section 1557 of the ACA and Section 1908 of the PHSA, the Court finds that Plaintiffs are likely to succeed on the merits of their ultra vires statutory claim....

Defendants assert that the challenged portions of the Executive Orders are based on the important government interest of "protecting the physical and emotional well-being of youth."...  Defendants assert that the Orders are substantially related to this important government interest because "[ e ]vidence. abounds that treatments covered by the Protecting Children EO 'are dangerous and ineffective."'... Though Defendants might well have support for this argument, the en banc Fourth Circuit in Kadel rejected a similar claim by noting that "those criticisms do not support the notion that gender-dysphoria treatments are ineffective so much as still developing."... Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

AP reports on the decision.

Parent May Proceed on Some Challenges to School's Policy on Transgender Students

In Landerer v. Dover Area School District, (MD PA, Feb. 13, 2025), a mother challenged a school board's policy Directive that prohibits parental notification without student consent when a student asks to socially transition and be called by a different name or pronouns. The court held that plaintiff lacked standing to obtain injunctive or declaratory relief because she had withdrawn her children from the Dover School District. The court also dismissed plaintiff's free exercise claim, saying in part:

... [T]he policy here is rationally related to the legitimate interest of protecting transgender students. Even though the policy is alleged by Plaintiff to impact or burden her religious beliefs, the Directive survives rational basis review.

The court however refused to dismiss plaintiff's claim that a teacher interfered with her right to direct the care (including medical and mental health care), custody and control of her child. It also refused to dismiss plaintiff's claim that she was denied procedural due process because the Directive failed to provide for notice to parents of their children's request to use a different name and pronoun. The court allowed plaintiff to proceed only against the school board and not against the individual defendants on these claims because of qualified immunity.

Kansas Governor Vetoes Bill Banning Medical and Surgical Treatment of Minors for Gender Dysphoria

 On Feb. 11, Kansas Governor Laura Kelly vetoed Senate Bill 63 which prohibited medical, hormonal or surgical treatment of minors for gender dysphoria. It provided for damage actions against doctors who violated the prohibitions and barred insurance policies from covering liability for such damages. State employees whose duties include care of children may not promote social transitioning. In her veto message (full text), Governor Kelly said in part:

Infringing on parental rights is not appropriate, nor is it a Kansas value. As I’ve said before, it is not the job of politicians to stand between a parent and a child who needs medical care of any kind. This legislation will also drive families, businesses, and health care workers out of our state, stifling our economy and exacerbating our workforce shortage issue.

Reporting on these developments, Kansas Reflector said in part:

Kelly, a Democrat, vetoed a similar bill last year, and Republicans failed to coordinate the necessary two-thirds majority to override the veto. House Speaker Dan Hawkins, a Wichita Republican, said in a statement Tuesday that House Republicans were ready to override this year’s veto.

UPDATE: On Feb. 18, the Kansas legislature overrode Governor Kelly's veto. 

Britain's Court of Appeals: Teacher Wrongfully Terminated for Personal Facebook Postings Reflecting Christian Beliefs on Sexuality

In Higgs v. Farmor's School, (EWCA, Feb. 12, 2025), Britain's Court of Appeal held that the dismissal of a teacher because of posts on her personal Facebook page reflecting her Christian-based objections to schools teaching children about same-sex marriage and gender fluidity constituted unlawful discrimination on the ground of religion or belief in violation of the Equality Act 2010. The court said in part:

The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others.  However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

Lord Justice Falk filed a brief concurring opinion.

U.S. Reverses Position in Transgender Case Already Argued Before Supreme Court

Last December, the U.S. Supreme Court heard oral arguments in United States v. Skrmetti. The case involves a challenge to a Tennessee statute prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The case began as a suit by a private party, but the United States then intervened and filed its own complaint challenging the constitutionality of the statute. After a decision by the 6th Circuit reversing a preliminary injunction against enforcement, both the United States and the private plaintiff filed petitions for certiorari. The Supreme Court granted review only in the United States' case. Now with a change of Administrations, the United States has changed its position and no longer challenges the Tennessee statute.  The United States on February 7 filed a letter (full text) with the Supreme Court, reading in part:

The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.  Accordingly, the new Administration would not have intervened to challenge SB1—let alone sought this Court’s review of the court of appeals’ decision reversing the preliminary injunction against SB1.

Nevertheless, the United States believes that the confluence of several factors counsels against seeking to dismiss its case in this Court.  The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts.  Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot.  Accordingly, the Court may resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari, see L.W. v. Skrmetti, No. 23-466 (filed Nov. 1, 2023), or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.

AP reports on the government's action.

ED "Dear Colleague" Letter Says Agency Will Not Enforce 2024 Rule Protecting Transgender Rights

Yesterday, the Acting Assistant Secretary of the Department of Education Office of Civil Rights issued a "Dear Colleague" letter (full text) to educators informing them that the Office of Civil Rights will enforce a 2020 version of Rules under Title IX governing responses to allegation of sexual harassment. Consistent with an Executive Order issued by President Trump mandating the removal of all rules and policies protecting transgender individuals, the letter rejects the version of Title IX rules adopted in 2024 by the Biden administration. Last month, a Kentucky federal district court invalidated the 2024 Title IX rules saying that they exceed the agency's authority, are vague and overbroad, and violate teachers' freedom of expression. (See prior posting.)

Trump Removes 2 EEOC Commissioners; New Acting Chair Says Agency Is Rolling Back Biden's "Gender Identity Agenda"

Federal News Network on Tuesday reported that President Donald Trump has removed two Democratic members of the Equal Employment Opportunity Commission. One of those removed was Charlotte Burrows, formerly the Chair of the Commission until President Trump designated a new Acting Chair last week. The other Commissioner removed was Jocelyn Samuels who served as Vice Chair of the Commission until removed by President Trump from that position last week. These removals appear to leave the Commission without a quorum necessary to act.

Meanwhile, in a press release issued Tuesday, the EEOC's new Acting Chair Andrea Lucas said that the agency is "rolling back the Biden administration’s gender identity agenda," and announced the removal of various references to transgender and non-binary gender markers in forms and publications. She pointed out however that she is unable unilaterally to remove provisions in strategic plans and enforcement guidance documents that relate to protection of transgender individuals because those documents were adopted by votes of the full Commission. The press release added, in part:

... Acting Chair Lucas has been vocal in her opposition to portions of EEOC’s harassment guidance that took the enforcement position that harassing conduct under Title VII includes “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;” and that harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”

Although Acting Chair Lucas currently cannot rescind portions of the agency’s harassment guidance that are inconsistent with Executive Order 14166, Acting Chair Lucas remains opposed to those portions of the guidance.

“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said. “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly.”

Executive Orders Call for Military Reinstatement of Vaccine Objectors, Military Exclusion of Transgender Individuals

Yesterday, President Trump issued an Executive Order titled Reinstating Service Members Discharged Under the Military's Covid-19 Vaccination Mandate (full text). The Order reads in part:

The vaccine mandate was an unfair, overbroad, and completely unnecessary burden on our service members.  Further, the military unjustly discharged those who refused the vaccine, regardless of the years of service given to our Nation, after failing to grant many of them an exemption that they should have received.  Federal Government redress of any wrongful dismissals is overdue.

The Executive Order calls for reinstatement with back pay for those who left the service rather than be vaccinated.  Many service members who refused vaccination did so on religious grounds.

Yesterday, the President also issued an Executive Order titled Prioritizing Military Excellence and Readiness (full text) which ordered the military to revise its Medical Standards for Military Service to exclude transgender individuals from service in the military. The Executive Order reads in part:

Consistent with the military mission and longstanding DoD policy, expressing a false “gender identity” divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.  Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.  A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member....

It is the policy of the United States Government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.  This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria.  This policy is also inconsistent with shifting pronoun usage or use of pronouns that inaccurately reflect an individual’s sex.

7th Circuit Hears Arguments on Accommodating Teacher Who Objects to Using Students' Preferred Names and Pronouns

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Kluge v. Brownsburg Community School Corporation. (Audio of full oral arguments.) In the case, an Indiana federal district court dismissed an orchestra teacher's Title VII claim that the school had failed to reasonably accommodate his religious objections to referring to transgender students by their preferred names and pronouns. The district court agreed with the school's rejection of using only students' last names as an accommodation. (See prior posting.) ADF, the teacher's counsel, issued a press release ahead of yesterday's arguments.

Trump Executive Order Reverses Agency Policies Protecting Transgender Individuals

Yesterday President Trump signed an Executive Order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (full text). The Executive Order seeks to eliminate the recognition of transgender individuals in federal agency policies interpreting antidiscrimination provisions.  The lengthy Executive Order provides in part:

Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept....

It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality....

Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages....

 The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities....

School's Transgender Policy Does Not Violate Teacher's 1st Amendment Rights

In Polk v. Montgomery County Public Schools, (D MD, Jan. 17, 2025), a public-school substitute teacher alleged that a Maryland school system violated her free exercise and free speech rights when it insisted that she affirm Guidelines on dealing with transgender students. The Guidelines required her to refer to students by their preferred pronouns and barred them from discussing a student's gender identity with the student's parents without the student's consent. Plaintiff insisted that the Guidelines conflict with her religious beliefs. She also contended that under Title VII she is entitled to a reasonable accommodation of her beliefs. The court dismissed plaintiff's free exercise claim, finding that the Guidelines are neutral and generally applicable. It dismissed her free speech claim because the speech required by the Guidelines are part of plaintiff's official duties as a teacher. The court however, while refusing to issue a preliminary injunction, permitted plaintiff to move ahead on her Title VII failure to accommodate claim against the school board saying that the Board's undue hardship defense should be raised at the summary judgement stage of the proceedings rather than on a motion to dismiss.

Suit Challenges Federal Agency Rule Changes Protecting Against Gender Identity Discrimination

Suit was filed last week in a Louisiana federal district court challenging rule changes interpreting five federal statutes. Defendants are HHS, Department of Agriculture, EEOC and the Department of Justice. The rule changes define sex discrimination and sexual harassment as including discrimination or harassment on the basis of gender identity and define gender dysphoria as a disability. The complaint (full text) in Rapides Parish School Board v. U.S. Department of Health and Human Services, (WD LA, filed 1/17/2025), contends that the rule provisions are not authorized by the various statutes being implemented, are arbitrary and capricious and violate the Spending Clause of the Constitution. It also alleges that various of the rule provisions compel speech in violation of the First Amendment and are unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Christian Employers Sue EEOC Over Transgender Rights and Abortion Mandate

Suit was filed yesterday in a North Dakota federal district court challenging two EEOC actions. The complaint (full text) in Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission, (D ND, filed 1/15/2025) alleges in part:

First, the Equal Employment Opportunity Commission (EEOC) has improperly applied Title VII of the Civil Rights Act of 1964 to force employers to affirm and accommodate employees’ gender-transition efforts.... This mandate, published in agency “guidance” and on its website, threatens employers with large penalties if they do not use employees’ self-selected pronouns based on gender identity, and if they do not allow males to access female single-sex restrooms, locker rooms, and lactation rooms.

Second, EEOC issued a final rule that twists the Pregnant Workers Fairness Act (PWFA).... , a statute intended to protect pregnant mothers in the workplace, to impose a nationwide abortion mandate forcing employers to promote and facilitate elective abortion....

The suit alleges that these mandates from the EEOC violate the free exercise and free speech rights of members of the Christian Employers Alliance.

Court Invalidates New Title IX Rules That Protected Transgender Students

In State of Tennessee v. Cardona, (ED KY, Jan. 9, 2025), a Kentucky federal district court issued a vacatur order invalidating rules under Title IX adopted by the Department of Education last April. Plaintiffs challenged provisions that extended sex discrimination bans to discrimination on the basis of gender identity. The court said in part:

Because the Final Rule and its corresponding regulations exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action, the plaintiffs’ motions for summary judgment will be granted....

... [T]he Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the de minimis harm standard, require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity....

The plaintiffs reasonably fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment under the Final Rule.  Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner....

The Final Rule also is vague and overbroad. ....

... [A] vacatur order “takes the unlawful agency action ‘off the books’”—“an entirely appropriate response when a plaintiff successfully establishes that the agency’s conduct violates the law.”...  Vacatur operates on the rule itself and prevents the rule’s “application to all who would otherwise be subject to its operation.” ... See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay 

Although the Court has discretion to craft a different remedy, there is no reason to do so here.

ADF issued a press release announcing the decision.

Challenges to School Policy on Disclosure of Gender Identity Change May Move Ahead

In Mirabelli v. Olson, (SD CA, Jan. 7, 2025), a California federal district court denied motions to dismiss a suit brought by teachers and parents challenging a policy of the state board of education that schools are not to disclose a student's announced change of gender identity to the student's parents without the student's consent. The policy is intended to protect student privacy.  Among other challenges, plaintiffs claimed that the policy violates their 1st Amendment free exercise and free speech rights. The court said in part:

According to the Complaint, the policies force parents to accede to a school’s plan to neither acknowledge nor disclose information about their child’s gender dysphoria.  By concealing a child’s gender health issues from the parents, parents are precluded from exercising their religious obligations to raise and care for their child at a time when it may be highly significant, because they are kept uninformed of the need for their child’s religious guidance.  “....

... Teachers do not completely forfeit their First Amendment rights in exchange for public school employment.  To the extent that teachers allege (as they do here) that EUSD has hired their speech to speak falsely or deceptively to parents of students, the teachers make out a plausible claim for relief under the First Amendment’s Free Speech Clause.  Likewise, to the extent teachers allege (as they do here) that EUSD’s curriculum includes what the teachers sincerely believe to be lies and deceptions for communications with school parents and that such prevarications are religiously or morally offensive, the teachers make out a plausible claim for relief under the First Amendment’s Free Exercise Clause.  EUSD contends that it is not a lie to not answer a question.  That the teachers sincerely held religious beliefs to the contrary cannot be simply dismissed....

There are no controlling decisions that would compel this Court to limit or infringe parental rights, notwithstanding the State’s laudable goals of protecting children.  This Court concludes that, in a collision of rights as between parents and child, the long-recognized federal constitutional rights of parents must eclipse the state rights of the child.  Therefore, the Court finds that the Plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied.

ED Withdraws Notice of Proposed Rulemaking on Transgender Students on Sports Teams

In a Notice (full text) to be published in the Federal Register on Dec. 26, the Department of Education withdrew a Notice of Proposed Rulemaking under Title IX on Sex-Related Eligibility Criteria for Male and Female Athletic Teams. The Rulemaking Notice was originally published 17 months ago. The proposed rule would have provided that criteria preventing a transgender student from participating on a team consistent with the student's gender identity would need to be substantially related to an important educational objective, and would need to minimize harms to the affected transgender students, The Department received more than 150,000 comments on the Proposed Rule during the 30-day comment period. In withdrawing the rule, DOE said:

In light of the comments received and ... various pending court cases, the Department has determined not to regulate on this issue at this time.

Ohio Legislature Passes Bill Requiring Released Time Programs and Providing Parents' Bill of Rights

On Dec. 18, the Ohio legislature gave final approval to House Bill 8 (full text) which includes a Parents' Bill of Rights and a provision requiring school boards to adopt a released time program, defined as "a period of time during which a student is excused from school to attend a course in religious instruction conducted by a private entity off school district property." Ohio law has previously made released time programs permissible rather than mandatory. The bill also adds a provision requiring schools to cooperate with sponsoring entities to identify a time during the school day for released time programs.

The parental rights portions of the bill include provisions requiring that parents be given the opportunity to review any instructional material that includes sexuality content. No sexuality instruction is permitted before 4th grade.  The bill also requires notification to parents of changes in counseling services provided to their children, including any request by a student to identify as a gender that does not align with the student's biological sex. Numerous provisions call for parental involvement in other health care services provided by schools to their children. Once the legislature forwards the bill to the governor, he will have 10 days to sign or veto the bill. Ohio Capital Journal reports on the bill. [Thanks to Scott Mange for the lead.]

Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria.  The court said in part:

 ¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ...  Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest....  SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents.  The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.  

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions.  A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

 ¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.