HELENA, Mont. — A Montana state judge convened on Thursday to hear arguments regarding policies that prevent transgender individuals from amending the sex designation on their birth certificates and driver’s licenses.
District Court Judge Mike Menahan did not provide an immediate decision on a request for a preliminary injunction aimed at halting these prohibitions as the legal case progresses.
“We are here to challenge what is effectively the latest expression of the state’s continuous focus on discriminating against transgender Montanans,” stated Alex Rate, an attorney representing the American Civil Liberties Union (ACLU) of Montana.
The lawsuit, filed in April by two transgender women, seeks to advocate for themselves and others facing issues in obtaining identity documents that accurately reflect their gender identity, as outlined in their complaint.
One specific regulation in Montana prevents transgender individuals born in the state from altering the sex designation on their birth certificates. Furthermore, another regulation requires that they possess an amended birth certificate to modify the sex listed on their driver’s licenses, which they are unable to obtain if born in Montana.
According to Rate, these vital documents are necessary for various functions, including applying for a marriage license, obtaining a passport, voting, and even purchasing a hunting license. He emphasized that each instance requiring transgender individuals to offer documents that do not accurately represent their gender forces them to reveal their transgender status.
The state’s position argues that sex is a binary concept, categorically male or female, and contends that transgender individuals do not constitute a protected group whose constitutional right to privacy can be infringed upon.
“The right to privacy does not encompass the ability to replace an objective biological fact with subjective gender identity on government documents,” asserted assistant attorney general Alwyn Lansing.
This hearing forms part of an ongoing series of legislative actions and legal challenges aimed at regulating the rights of transgender residents in Montana, primarily driven by the state’s Republican leadership. The state has presented various arguments in defense of its restrictions on changing identifying documents, citing needs for accurate statistical data or claims that one’s biological sex remains immutable despite the potential for gender identity to change.
“The state has not presented any convincing legitimate reason for limiting access to accurate identity documentation, let alone a compelling one,” Rate stated.
In late 2017, under the administration of Democratic Governor Steve Bullock, a rule was authorized by the state health department allowing individuals to amend the sex designation on their birth certificates through an affidavit. Nonetheless, in 2021, the Republican-led Legislature and Governor Greg Gianforte enacted a law stipulating that transgender individuals could only change the sex on their birth certificates after undergoing surgery.
This law was ultimately ruled unconstitutionally vague due to lacking specifics about which surgeries were necessary, leading to a judicial directive restoring the 2017 protocol.
Facing this, the health department, now under Republican control, introduced a new rule that allows changes to birth certificate sex designations only to correct clerical mistakes.
In 2023, the Montana Legislature enacted a law defining “sex” in state documents strictly as male or female, based solely on a person’s sex assigned at birth. Although this legislation was deemed unconstitutional due to misleading titling, the ACLU argues that it continues to impact state policies regarding driver’s licenses.
The ACLU has requested that Judge Menahan impose a temporary ban on this policy and reinstate the 2017 rule permitting transgender individuals to adjust the sex designation on their birth certificates via affidavit.
Currently, Montana is one of just seven states that do not permit individuals to change the sex designation on their birth certificates. In contrast, twenty-five other states allow such changes, with fifteen offering non-binary options including male, female, or X. Additionally, about a dozen states permit this change following gender-affirming surgeries, as noted by the Movement Advancement Project.
Regarding driver’s licenses, thirty states allow changes to sex designations, while Montana finds itself among sixteen states characterized as having a particularly “burdensome process.” Four states altogether do not allow any changes to gender on driver’s licenses.
This year, Montana lawmakers have also passed legislation prohibiting gender-affirming medical care for transgender minors. However, this law faced a temporary halt in September 2023, just ahead of its scheduled implementation. The judge indicated that it appeared to be likely unconstitutional and could negatively affect the mental and physical health of minors experiencing gender dysphoria, opposing the law’s stated intent to protect minors from experimental treatments.
Furthermore, the judge noted that the legislative records regarding the medical care bill showed significant bias against transgender individuals. The state has since appealed the preliminary injunction to the Montana Supreme Court, which has yet to issue a ruling.