Op-Ed: Judicial activism at work in transgender court case

There are many things that children can't legally do in Montana. They can't smoke a cigar, drink alcohol, die fighting for their country in a foreign war, vote or engage in a variety of transactions.

The reason for that is simple: they're children. They aren't developed enough yet to make serious life-altering decisions, with or without parental consent. They haven't had enough life experience yet to adequately weigh the risks or consequences of potentially dangerous activities.

So, while the state should have, and does have, minimal say over what adults choose to do with their lives, society and the courts have long recognized that the state has an serious interest in protecting the developing minds, bodies, and lives of children.

Protecting children is exactly what the 2023 Legislature set out to do when it passed Senate Bill 99. SB 99 would have prohibited surgically removing or altering children's genitalia or other body parts to make them appear to be a gender other than their biological sex. It also would have prohibited issuing children hormones to interfere with their natural progression through puberty.

We say SB 99 "would have" protected children from these life-altering and potentially dangerous procedures because Missoula District Court Judge Jason Marks recently blocked SB 99 from becoming law. While the judge's ruling is replete with legal and ethical problems, we want to raise two particular ways in which he strayed from his judicial role into legislating from the bench.

First, Judge Marks decreed that the Legislature's intent when passing SB 99 was not protecting children, but rather some kind of animosity toward transgender Montanans. Recall, SB 99 doesn't affect what consenting adults choose to do with their bodies or their lives in any way. The entire scope of the bill is specifically limited to children; the legislation doesn't apply to transgender adults at all.

The judge appears to have ignored dozens of hours of on-video legislative testimony, hundreds of remarks from legislators all across the state, and the stated intent for the legislation, all of which make it clear that the Legislature's intent was to protect children. Instead, Judge Marks cherry picked two random comments from legislators to invent a nonexistent legislative intent that fit his desired political narrative.

Second, he roped in a completely different piece of legislation, the Right to Try Act, to again try to invent a legislative intent that didn't exist. The Right to Try legislation allows Montanans to access experimental medications and treatments when the more standard options aren't working for them. That bill was about Montanans having the right to try to save their own lives, to slow the progression of Alzheimer's, to cure their cancer, to recover from brain damage, etc., not to surgically remove healthy body parts from healthy children.

If Judge Marks wants to make policy in Montana, he should run for the Legislature, not legislate from the bench. Children will pay the price of this liberal judicial activism.

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Sen. Jason Ellsworth, R-Hamilton, is the President of the Montana Senate. Sen. John Fuller, R-Kalispell, is the sponsor of SB 99