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Privacy Law

Top Montana court allows gender-affirming care for trans minors during litigation, citing privacy protections

By Debra Cassens Weiss

December 12, 2024, 11:52 am CST

The Montana Supreme Court on Wednesday cited state constitutional privacy protections when it upheld a judge’s decision to block a law that bans gender-affirming care for transgender minors.

The state supreme court upheld a state judge’s determination that a privacy challenge to the 2023 law blocking the care was likely to succeed on the merits, and that challengers were likely to suffer irreparable harm absent an injunction.

The Montana Supreme Court’s Dec. 11 decision leaves in place a preliminary injunction that blocks the ban on gender-affirming care pending a trial in the case.

The state supreme court cited the Montana Constitution, which provides: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

The law should be evaluated using strict scrutiny, the state supreme court said.

“The statute at issue here prevents a wide range of treatment even when such treatment is determined, in the judgment of a medical professional working with their patients, to be in the patients’ best interest and given with informed consent,” the Montana Supreme Court said. “The district court reasonably concluded that the balance of the equities tips toward preliminary relief pending full consideration of the merits.”

Two concurring justices said the state supreme court also should have addressed the plaintiffs’ claim that the law violates the state constitution’s equal protection clause.

“Gender-affirming care is currently being litigated on equal protection grounds around the country, and the United States Supreme Court is poised to take up the issue this term,” the concurrence said. “These cases are instructive in certain ways, but they cannot answer what this court is being asked: how sex/gender discrimination and suspect class discrimination should be handled under the unique equal protection provision of the Montana Constitution.”

A partial dissenter would have allowed the law’s ban on Medicaid funding for gender-affirming care to take effect.

Hat tip to the American Civil Liberties Union, which issued a Dec. 11 press release.

How Appealing linked to coverage by the Flathead Beacon and Courthouse News Service.

From the recently introduced American Privacy Rights Act—which proposes new federal consumer privacy standards—to numerous state-level bills, to recent and impending artificial intelligence legislation, the data privacy landscape is evolving at lightning speed.

Compliance concerns are now front and center for organizations of all sizes—abroad and in the United States. While it is unlikely that legislation will pass at the federal level, states have clearly demonstrated a willingness to pass and implement comprehensive privacy laws.

California led as the first state when it passed the California Consumer Privacy Act (signed into law in 2018 and went into effect in 2020). And it was then joined by Virginia, Colorado, Utah and Connecticut, all of which were implemented in 2023 with new consumer privacy laws. By the date of this article, at least 19 states have passed comprehensive privacy legislation (with implementation dates in 2025 and 2026).

Make no mistake: Maintaining privacy compliance is a complex moving target, and the checks and balances that your company needed 10 years ago do not even scratch the surface of what you need today. As a general counsel, you must be able to assemble a strong, adaptable legal team that can help your company stay compliant with current standards and anticipate and respond to the many changes coming down the pike.

Key considerations for GCs

When preparing for the new frontier of privacy and data security, consider how your department and organization will handle the following critical issues.

  1. Ownership of privacy matters. Who is responsible for privacy concerns within your organization—is it the legal department exclusively? If you do have a privacy team, how does your team partner with legal to ensure that all bases are covered? As data privacy concerns become increasingly paramount to your operations and risk management efforts, you may want to consider the benefits of having a separate, dedicated team for these issues. This laser-focused support can help your company keep up to date with regulatory changes and respond with the necessary policies and procedures, thereby reducing the risk of violations and hefty fines. What is more, a freestanding privacy team can be a bridge between various departments, ensuring that privacy is considered across all business functions.

  2. Drafting of privacy notices. Given recent and emerging legislation, the drafting of privacy notices and privacy-related contract provisions has taken on new urgency for businesses that handle consumer data. Poorly drafted notices can expose your business not only to legal risks but also to fines and reputational damage. While most lawyers have a degree of skill in drafting these notices, consider whether you have the right person handling this task. A seasoned privacy lawyer understands the legal nuances of your company’s data tracking, collection, processing, storage and sharing practices. They can also help balance legal compliance and user accessibility by making sure that all privacy notices are clear, transparent and easily understandable for consumers.

  3. Implications of AI technology. AI is not just the buzzword of the moment; it is likely one of the biggest technological revolutions in human history. Generative AI and other types of machine learning are being implemented in different technologies, by nearly all companies and vendors of all kinds, at a rapid pace. That means that even if your company is not in a regulated industry, you will still have to worry about being regulated by any AI laws on the horizon.

The European Union took the first step in the march toward AI regulation, with the EU Artificial Intelligence Act taking effect across all 27 member states Aug. 1. While some provisions are already active, by 2026, most of this law’s provisions will go into force.

Not wanting to fall behind, Congress has proposed federal legislation, and the White House and agencies, such as the Federal Trade Commission, the Securities and Exchange Commission and the Equal Employment Opportunity Commission have provided guidance on the topic.

Many states are being proactive, with Colorado and Illinois passing AI legislation in 2024 that take effect in 2026. Additionally, at the end of its 2024 legislative session, California passed numerous AI bills.

The plethora of AI legislation will have significant global implications for companies that develop, deploy or operate AI systems—regardless of where they are in the world. Companies worldwide will have to invest in AI governance; adapt their technologies to meet these regulatory standards; and ensure that their AI systems are lawful, ethical and trustworthy (or else face penalties and business restrictions in the EU or other markets).

Even if your company is using AI indirectly (e.g., through a third-party vendor) and not actively developing AI tools, it will face unprecedented new demands in this area. You will be obligated to explicitly outline how you are using AI, implement an AI risk management policy, and perform AI risk assessments.

These matters will not be exclusive to the legal/privacy team. Instead, it requires a multidisciplinary AI team that brings together key business stakeholders, legal, IT, data science, risk, information security, marketing and other functions. As a GC, you have to be able to understand legal’s role in the AI ecosystem and what you are ultimately obligated to do to meet compliance standards.

Consider flexible talent who can make an immediate impact

If you are wondering whether your team has the bandwidth or expertise to manage new and emerging privacy demands and you are not yet ready to add head count, one option to consider is using interim, or temporary, counsel. These lawyers can help lighten your load, whether it is for a specific project or a flexible range of time, bringing in specialized legal expertise as you get your arms around new privacy regulations. A privacy lawyer can help you quickly assess privacy risks, implement corrective measures, and train your internal teams.

In addition to a wealth of privacy and/or AI expertise, interim counsel can often hit the ground running without much assistance. They offer immediate support and strategic guidance for the future—all without the long-term commitment of a permanent hire. That said, if you have an interim privacy lawyer that makes a solid addition to your team, you can often convert them to a permanent employee down the road.

Stay informed, agile and proactive

Preparing your legal team for the evolving privacy landscape is not just a matter of compliance—it is a strategic necessity if you want to stay ahead of the curve. By educating yourself on the changes to come, defining roles and responsibilities, and getting creative with how you build your team, you will be poised to mitigate risk and emphasize your role as a trusted adviser to the business.

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Maureen Dry-Wasson is vice president, group general counsel and global privacy officer with the Allegis Group and Major, Lindsey & Africa. She has been an in-house attorney for more than 25 years and is a fellow of information privacy with certifications from the International Association of Privacy Professionals for AI governance privacy management.

Iris Zuckerman is a managing director of client development with Major, Lindsey & Africa’s interim legal talent team in Chicago, working with law firms and legal departments to identify high-quality legal talent to take on short-term, project-based engagements.

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Mind Your Business is a series of columns written by lawyers, legal professionals and others within the legal industry. The purpose of these columns is to offer practical guidance for attorneys on how to run their practices, provide information about the latest trends in legal technology and how it can help lawyers work more efficiently, and strategies for building a thriving business.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.