HELENA, Mont. — A Montana state judge has issued a temporary injunction against regulations that barred transgender individuals from modifying the sex designation on their birth certificates and driver’s licenses.
District Judge Mike Menahan made his ruling on Monday, halting the enforcement of these rules while the case proceeds through the judicial system.
During his decision, Menahan suggested that it was premature to address whether transgender Montanans represent a class that requires special consideration based on their gender identity. Nonetheless, he challenged the state’s position that discrimination against transgender individuals does not constitute discrimination based on sex.
In his written opinion, Menahan stated, “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.”
The litigation was initiated in April by two transgender women advocating for themselves and others who have faced difficulties obtaining documentation that accurately portrays their gender identity.
One of the regulations prohibits transgender individuals born in Montana from altering the sex recorded on their birth certificates, while another regulation requires an amended birth certificate for transgender individuals wanting to adjust the sex on their driver’s licenses—a change that is impossible to achieve if they were born in the state.
Plaintiff Jessica Kalarchik, a Montanan by birth, expressed her frustration, stating that while she aims to live authentically as the woman she identifies as, Montana insists on her possessing a birth certificate that incorrectly labels her sex as male.
Legal counsel Alex Rate from the American Civil Liberties Union of Montana noted that birth certificates and driver’s licenses are essential for various purposes, including marriage licenses, passports, voting, and even hunting licenses. He emphasized that each time a transgender person is asked to present an inaccurate document, it requires them to disclose their transgender status.
The state contended that sex is strictly binary—male or female—and argued that transgender individuals do not belong to a protected class with constitutional rights regarding privacy.
In defense of the state, Assistant Attorney General Alwyn Lansing asserted that the right to privacy does not encompass the ability to alter biological sex on government documents.
Chase Scheuer, a spokesperson for the Department of Justice, commented that the judiciary has once again overridden the democratic intentions of Montana residents by siding with particular interests and radical ideologies. The agency has yet to decide whether to appeal the temporary injunction.
Meanwhile, the state health department, responsible for issuing birth certificates, avoided comments on ongoing litigation, as stated by spokesperson Jon Ebelt.
This case is part of a larger trend involving numerous laws and legal disputes in Montana and other states, where Republican lawmakers aim to restrict the rights of transgender persons. Various justifications have been presented for banning changes to identity documents, including the necessity for accurate statistical records and the assertion that a person’s biological sex cannot be altered, even if gender identity can.
Rate countered during the November hearing that the government failed to present any valid interest in limiting access to accurate identity documents, let alone a compelling one.
Earlier, in late 2017, under the leadership of Democratic Governor Steve Bullock, Montana’s health department had allowed individuals to change the sex designation on their birth certificates by signing an affidavit.
However, in 2021, following the election of a Republican state legislature and Governor Greg Gianforte, a law was enacted stipulating that transgender individuals could not modify the sex on their birth certificate without having undergone surgery. This legislation was later ruled unconstitutionally vague because it did not clarify which surgical procedures were required, prompting a return to the 2017 policy.
In response, the then-Republican led health department established a rule that prevented individuals from changing the sex designation on birth certificates unless rectifying a clerical error.
In 2023, the state’s legislature passed a measure defining “sex” solely as male or female based on the assigned sex at birth. Although this law was deemed unconstitutional due to a misleading title, the ACLU claims that it is still being used to dictate policies related to driver’s licenses.
Menahan’s order halted the 2022 health department rule concerning birth certificates and the motor vehicle division policy that required an amended birth certificate for changes to a driver’s license. It also invalidated the 2023 law defining sex within the context of birth certificates and driver’s licenses.
Currently, Montana is one of seven states that prohibits changes to the sex designation on birth certificates. In contrast, 25 states permit such modifications, with 15 offering options for male, female, or non-binary (X) designations. Additionally, twelve states allow changes following gender-affirming surgeries.
Regarding driver’s licenses, thirty states allow alterations to the sex designation. Montana is included among 16 states regarded as having “burdensome processes,” while four states do not permit any changes at all.
Further complicating matters, Montana lawmakers in 2023 passed a bill preventing gender-affirming medical care for transgender minors. This law faced a temporary block in September 2023 just before its implementation, with the Montana Supreme Court recently upholding the injunction.
