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A Lewis and Clark County District Court judge on Monday issued a preliminary injunction that prevents the state from enforcing multiple laws, rules and policies that are keeping transgender Montanans from changing their sex designations on their birth certificates and driver’s licenses to denote their gender.
Judge Mike Menahan’s injunction applies to a rule adopted by the Department of Public Health and Human Services earlier this year in which the department said it would not amend any birth certificates based on any person’s gender transition or gender identity. It also applies to a 2022 DPHHS rule in which the department said it would only change sex designations on birth certificates if that sex designation was made in error.
And his order applies to Senate Bill 458, passed during the 2023 session, which created law that said there are only two sexes, male and female, and attempted to define those sexes without regarding a person’s “psychological, behavioral, social, chosen, or subjective experience of gender.” That law was blocked by a judge earlier this year.
“Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, the executive director of the ACLU of Montana, one of the organizations representing the plaintiffs, in a statement.
The attorneys for the two transgender women who are the plaintiffs in the case told Menahan during a hearing in November that the policies should be struck down because the state was directly targeting transgender Montanans through them and that they were a departure from the status quo in 2017, when transgender Montanans could change their sex designations without any issues.
ACLU of Montana attorney Alex Rate told the court that the policies constituted discrimination against his clients in violation of the state Constitution’s equal protection clause, prohibition on compelled speech and right to privacy. That, in part, is because his transgender clients were being treated differently than people who present as the sex they were born.
The state, DPHHS and Gov. Greg Gianforte, who are the defendants in the case being represented by the Attorney General’s Office, argued that sex and gender are not interchangeable, that the plaintiffs wanted the court to put a new protective class into Montana law, and that the suit argued over political questions that were not within the court’s jurisdiction. The state’s attorneys said they do not believe that discrimination against transgender people constitutes discrimination on the basis of sex.
Menahan’s order found that the plaintiffs had established that the state’s policies affect cisgender – people who present as the sex they were born – and transgender Montanans unequally. He also disagreed with the state’s argument that discrimination on the basis of a person being transgender was not the same as discrimination on the basis of their sex.
Menahan cited two court rulings from the past four years to support his findings. The first was the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, which involved employment discrimination, in which the court found it was “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The second decision he cited was one from the Tenth U.S. Circuit Court of Appeals decision earlier this year involving an Oklahoma policy similar to Montana’s and the U.S. Constitution’s equal protection clause. The appeals court, relying on the Bostock decision, found the U.S. Supreme Court’s decision in Bostock did not only apply to employment, and that Oklahoma’s policy was intended to discriminate against transgender people in part based on sex. Menahan wrote that he “adopts the same reasoning” in reaching his conclusions.
“If the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate on the basis of sex,” Menahan wrote.
“The Montana Supreme Court has not yet identified the level of scrutiny applicable to classifications based on transgender status or sex. However, if a right is ‘explicit in the Declaration of Rights in Montana’s Constitution, it is a fundamental right.’”
He pointed to the right to individual dignity in the state Constitution, which disallows, among other things, discrimination against a person based on their sex. That means it is also a fundamental right subject to the highest level of scrutiny in the court system, strict scrutiny, he wrote.
Strict scrutiny forces the state to show its actions are narrowly tailored to serve a compelling state interest. Menahan’s order said the state did not offer any argument about why the policies served that interest or even related to a state interest, but the plaintiffs had suggested the state was aiming to ensure it was gathering “accurate vital statistics.”
Menahan said that might be a compelling interest for the state and that he anticipated that argument “will become more clear” as the case moves forward. But he said even if that is the case, the state has yet to show that the policies are narrowly tailored. He also noted that transgender Montanans were previously able to change their birth certificates and driver’s licenses and that the plaintiffs had argued there was no record of that affecting the state’s ability to maintain accurate vital statistics.
“Thus, the state interest could presumably be effectuated without the challenged state actions,” Menahan wrote. “If the challenged state actions are not necessary to effectuate the state interest, they cannot be narrowly tailored.”
Menahan found that the plaintiffs had shown they would be irreparably harmed because their constitutional rights under the equal protection clause were being violated, another prong required for the court to issue a preliminary injunction.
Menahan wrote that the plaintiffs had also met the standard for an injunction because they had shown a likelihood of success on their equal protection argument and the balance of equities also tipped in their favor because court precedent shows the government is not harmed when an injunction “ensures that constitutional standards are implemented.”
The injunction prevents the state from enforcing the birth certificate and driver’s license policies, as well as SB 458, though it was already struck down by a Missoula District Court judge earlier this year, as applied to Montana birth certificates and driver’s licenses.
The state will be able to appeal the preliminary injunction to the Montana Supreme Court, but spokespersons for the Governor’s Office and the Attorney General’s Office did not immediately respond to a question of whether it would Tuesday morning, nor did they respond to requests for comment. A spokesperson for DPHHS said the department does not comment on pending litigation.
The ACLU of Montana argues that requiring transgender people to carry government documents that do not reflect their gender presentation subjects them to mistreatment and discrimination because they are “outed” every time they have to show those documents. The organization said during the November hearing it was seeking to certify a class of Montanans so the policies cannot be enforced for any current or future transgender Montanans.”
During the November hearing, the ACLU of Montana said state data showed at least 280 Montanans had tried to amend their birth certificates during the past seven years, including at least 85 since 2022.
One of the plaintiffs, Jessica Kalarchik, a 31-year U.S. Army veteran, said she is frustrated by that situation.
“I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male,” Kalarchik said. “Fortunately, the court agrees that this ridiculous policy should not be in effect.”