Abortion Rights and Transgender Rights Are Intertwined 

The rights to both abortion care and gender-affirming care should derive from the same constitutional protections, including those for bodily autonomy, medical decision-making, liberty, privacy, and equality. But federal courts are failing to safeguard either right, let alone build jurisprudence that recognizes how they’re linked. State courts, however, can chart their own path.

The Montana Supreme Court recently became the first state high court to side with patients and their families in the ongoing attack against trans people’s access to healthcare. Notably, it relied on decades of Montana precedent recognizing that the state right to privacy protects abortion, showing how intertwined rights can build toward stronger personal protections for all. 

Given that reproductive and trans rights are both essential for people to have control over their bodies and lives, it’s unsurprising that they face attacks from the same playbook. Opponents wage falsehoods about so-called biological truth to claim that banning abortion and gender-affirming care is not sex discrimination. They rely on junk science to justify bans on necessary medical care in the name of “safety.” And they’re trying to use Dobbs v. Jackson Women’s Health Organization — which overturned the federal liberty right to abortion — to support their arguments.

Dobbs did not present the U.S. Supreme Court with an equal protection claim, as many cases challenging bans on gender-affirming care do. But the decision includes a sentence referencing a 1974 Supreme Court case about pregnancy benefits to suggest the Court’s view that categorical bans on some sex-specific medical procedures might not be sex discrimination. Proponents of gender-affirming care bans have seized on Dobbs to defend these restrictions as “neutral medical regulation” that does not implicate equal protection, despite withholding care from individuals based on their sex assigned at birth. The Supreme Court may accept this reasoning in a pending case about access to gender-affirming care for young people, United States v. Skrmetti. If it does, it would upend decades of settled law by holding that outlawing treatment for a diagnosis that necessarily turns on a patient’s sex is not sex discrimination subject to heightened scrutiny. Given that half of all states ban gender-affirming care for minors, such a decision would have sweeping impacts for transgender youth.

The failings of federal courts highlight the opportunity for state courts to recognize stronger, interconnected rights based on their unique constitutions and interpretive methods. The Montana Constitution stands out among state constitutions for its strong emphasis on equality and individual rights such as privacy and dignity. Across issues, the Montana Supreme Court has declined to adopt the weaker protections from federal precedent. For decades, the state supreme court has instead interpreted its constitution to protect rights that necessarily change and expand over time, consistent with the Montana Constitution’s framers’ intentions, while higher-level values like privacy and equality remain the touchstone.

The Montana Supreme Court’s seminal case recognizing that the constitution’s explicit privacy right protects abortion dates to 1997, when several abortion providers challenged a law prohibiting qualified physician assistants from providing abortion care. The court held that privacy “broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from government interference.”

The court further held that this broad right includes a “procreative autonomy” guarantee encompassing decision-making around abortion care. The court reviewed proceedings of the state’s constitutional convention to note how delegates “deliberately drafted a broad and undefined right of ‘individual’ privacy” that, in eschewing limits, was “as narrow as is necessary to protect against a specific unlawful infringement of individual dignity and personal autonomy by the government . . . and as broad as are the State’s ever innovative attempts to dictate in matters of conscience, to define individual values, and to condemn those found to be socially repugnant or politically unpopular.” The case, Armstrong v. State, helped solidify that the Montana Constitution is an independent, and often stronger, rights protector than the U.S. Constitution.

Over the next decades, the Montana Supreme Court expanded the privacy right to abortion in multiple opinions emphasizing that medical decision-making and autonomy are fundamental. In 2023, the court reaffirmed that Montana’s constitution affords its citizens stringent privacy protections — amongst the strongest in the country — when it held that the right extended to private medical decisions such as choosing a qualified abortion provider. Most recently, the court upheld the right in a decision finding a parental consent law unconstitutional. The court emphasized: “A minor’s right to dignity, autonomy, and the right to choose are embedded in the liberties found in the Montana Constitution.” (Notwithstanding the positive practical effect of the court’s conclusion, the Montana attorney general has sought U.S. Supreme Court intervention in the case to undo the decision on federal grounds.)

In tandem with ongoing efforts to restrict and ban abortion, the Montana legislature has ramped up virulent attacks on trans rights. Along with other claims, state court challenges assert that these legislative assaults violate the right to privacy. In late 2024, the Montana Supreme Court held that the right to privacy could encompass medical treatment for young trans people, affirming a lower court ruling that a ban on gender-affirming care is likely unconstitutional. The court specifically drew on Armstrong and its progeny to explain that government regulation of private medical decisions is subject to the most stringent judicial review. It held that the state failed to establish that gender-affirming care poses a medically acknowledged, bona fide health risk, and so could not use its general regulatory authority — often called “police power” — to infringe an individual’s fundamental right to privacy by restricting necessary healthcare. In a related win, a trial court recently relied on the same body of precedent to hold unconstitutional a law that would erase trans legal status by redefining “sex” in the Montana Code. 

Extending holdings from abortion cases to trans rights cases demonstrates that the same constitutional protections for personal autonomy and bodily integrity apply to diverse decisions that people make about their bodies, health, and lives. These protections are not just about reproductive rights or trans rights. They’re core, fundamental guarantees that must apply regardless of who is asserting them, especially when the state is targeting disfavored groups or choices without evidence to justify its restrictions. The federal courts have not only failed to recognize these connections, but worse, are using the rollback of abortion rights to undermine protections for trans people. The Montana Supreme Court’s decision in favor of gender-affirming care shows how state courts can go the opposite way, upholding key constitutional values while building stronger legal protections for all people.

Amy Myrick and Alexander Wilson are attorneys at the Center for Reproductive Rights.

Suggested Citation: Amy Myrick & Alexander Wilson, Abortion Rights and Transgender Rights Are Intertwined, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 1, 2025), https://statecourtreport.org/our-work/analysis-opinion/abortion-rights-and-transgender-rights-are-intertwined