Montana Republicans say no to prosecuting parents for trans care

Five days after President Donald Trump declared “gender ideology” to be “one of the most prevalent forms of child abuse,” Montana’s Republican-controlled House of Representatives killed a bill that would have enshrined much the same idea into state law by criminalizing parents and medical providers.

Montana Senate Bill 164 would have made it a felony for any adult to help transgender children under 16 to gain access to gender-affirming medical care—including hormones, puberty blockers, and surgeries—classifying such help as child endangerment. On Tuesday, House lawmakers voted 58-40 to reject the proposed law, with 17 Republicans joining Democrats to block the bill from advancing to its final reading. 

“I think it’s overly broad,” the lone Republican to speak against the bill, Rep. Brad Barker, said Tuesday. Barker said that while he generally opposes gender-affirming care for trans youth, SB164 was “the wrong approach.” 

“I don’t like the thought of criminalizing parents,” Barker said, entreating fellow Republicans to “vote with your conscience.” 

The bill carried penalties of up to five years in prison and $10,000 in fines for any adults, including parents and doctors, who provided children with surgery, puberty blockers, or hormone replacement therapy for the purpose of “altering the appearance” of the child or affirming the child’s gender. If “serious bodily injury” occurred, the maximum punishment was 10 years imprisonment and $25,000 in fines.

“Turning parents and doctors into felons is absolutely not the approach that best serves this state,” Democratic Rep. SJ Howell, the first non-binary person to be elected to the Montana legislature, said on the House floor.

The bill cleared the Senate in February, 30-20, with two Republicans voting against it. In that floor debate, the legislation’s sponsor, Republican Sen. John Fuller, called it a “simple bill” to protect Montana’s children. “The state does have a compelling interest, a very compelling interest, to avoid the sterilization and sexual mutilation of children,” he said. In 2023, Fuller sponsored a law that threatened medical providers’ licensing if they offered gender-affirming care to minors, a law that courts have blocked while litigation proceeds.

“This bill is not about politics, it’s about safeguarding the health and innocence of Montana youth,” one of SB164’s House supporters, Republican Rep. Braxton Mitchell, said Tuesday. But more than a quarter of members of his own party disagreed, suggesting a potential turning point for the Montana legislature, at least on trans issues.

Tuesday’s vote was the second time this year a large swath of Republicans crossed party lines to block an anti-trans bill. Last year, Montana’s first openly transgender lawmaker, Rep. Zooey Zephyr, said her Republican colleagues often privately bemoan the transphobic culture wars and apologize to her for their votes on anti-LGBTQ legislation. 

Even so, Republican Gov. Greg Gianforte signed two anti-trans bills into law last month—a bathroom ban and a law prohibiting trans girls and women from playing on women’s sports teams from kindergarten through college. The bathroom ban has been temporarily blocked. A state law that prohibited trans women from participating in female collegiate sports was ruled unconstitutional in 2022.

The right to privacy is enshrined in the Montana constitution, and state courts have strongly affirmed its application to healthcare laws. Last December, the Montana Supreme Court upheld a lower court’s preliminary injunction on a law that would have made gender-affirming medical care providers vulnerable to licensing board disciplinary proceedings. And last summer, it ruled that a parental consent law for minors seeking abortion was unconstitutional. (In January, Montana Attorney General Austin Knudsen asked the U.S. Supreme Court to declare that ruling an unconstitutional infringement on parental rights. The Supreme Court has not decided whether to hear the case.)

If it had passed, SB164 would have become the first law in the country defining gender-affirming care as a form of felony child endangerment. (Child endangerment and abuse fall under different statutes, but both evoke the same myth that gender-affirming care is dangerous for youth.)

Montana, however, wouldn’t have been the first state to direct child welfare workers to investigate families of trans children. In 2022, Texas Republican Gov. Greg Abbott ordered the state’s Department of Family and Protective Services to open child abuse investigations into parents who seek gender-affirming care for their children. That directive remains partially blocked after families of trans children and the LGBTQ advocacy group PFLAG sued.