A Montana judge has temporarily blocked state GOP officials from enforcing policies that prevent transgender people from changing their sex designation on birth certificates and driver’s licenses, as the case plays out in court.
In granting the motion for a preliminary injunction, Montana district judge Mike Menahan disagreed with the state’s argument that discrimination on the basis of transgender status does not constitute discrimination on the basis of sex.
“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 in Monday’s order. “The Montana Supreme Court has not yet identified the level of scrutiny applicable to classifications based on transgender status or sex.”
The judge said it was unnecessary to determine at this point in the case whether transgender Montana residents count as a suspect class on the basis of their transgender status, meaning they have been discriminated against in the past and will likely face discrimination in the future.
The court order comes about a week after the Montana supreme court blocked a state law prohibiting physicians from surgically or medically transitioning minors. In that decision, two of the seven justices concurred that discrimination based on transgender status is a form of sex discrimination that violates the Montana constitution’s equal protection clause.
The case on which Menahan ruled this week started in April, when two transgender-identifying women alleged they couldn’t obtain documents “that accurately reflect their sex” under state law, according to the complaint.
Montana adopted two rules earlier this year. One restricted Montana-born residents from changing their sex on birth certificates, and the other did the same for driver’s licenses if the person couldn’t provide an amended birth certificate.
The two plaintiffs expressed frustration with these policies, subsequently filing the lawsuit. They are represented by the American Civil Liberties Union, the ACLU of Montana, and top-100 law firm Nixon Peabody LLP.
“After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male,” plaintiff Jessica Kalarchik said in a statement.
“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. Fortunately, the court agrees that this ridiculous policy should not be in effect.”
Counsel for the plaintiffs argue their clients are forced to “out” themselves as transgender on documents that don’t reflect their identified gender.
Meanwhile, the Montana attorney general’s office asserts sex and gender are not interchangeable and that sex is a binary of male and female. The state also argued the plaintiffs were trying to create a new protected class of transgender people.
“To adopt plaintiffs’ argument would be to create a new protected class, which is gender identity, that is in direct conflict with Montana Supreme Court precedent. The Legislature is the only one who could do that,” Montana assistant attorney general Alwyn Lansing said during a court hearing last month. “The right to privacy does not include a right to replace an objective fact of biological sex on a government document with subjective gender identity.”
The state can appeal the district judge’s ruling to the Montana supreme court, while the case itself will proceed in district court.
“The judiciary has once again defied the democratic will of Montanans by siding with special interest groups and the left’s radical leftist ideology,” Chase Scheuer, press secretary of Montana attorney general Austin Knudsen, said in a statement obtained by National Review.
Scheuer added the attorney general’s office is reviewing the order to determine next steps.