Missoula judge hears human rights appeal in driver’s license gender case
Darrell Ehrlick
(Daily Montanan) The American Civil Liberties Union of Montana argued that Montana’s system for issuing driver’s licenses intentionally sets up a hurdle that discriminates against nonbinary and transgender residents — a topic of repeated court cases for several years.
On Tuesday, the ACLU of Montana told Missoula County District Court Judge Shane Vannatta that the state’s motor vehicle application leaves only two choices, “male” and “female,” forcing nonbinary or transgender residents to lie on forms in order to get a driver’s license. Furthermore, attorneys for ACLU argued that Montana statute doesn’t even require the information for licensing drivers, so the requirement just creates a hurdle and an opportunity to discriminate.
Meanwhile, attorneys for the State of Montana argued that the driver’s license application form specifically says there are no legal consequences for answering the question incorrectly, therefore the state doesn’t even have the power to discriminate based on gender or sex. Instead, attorneys for the state say that the case of plaintiff M.B. is really a straightforward case of a resident not completing an application.
Vannatta is hearing the case as the ACLU has appealed the Human Rights Commission decision that overturned a hearing officer’s finding that the state had discriminated. The commission said it overturned the officer’s decision because it believed the Montana Department of Motor Vehicles had correctly determined the form was not filled out properly. In Montana, those decisions can be appealed to the district court.
The ACLU says that form and the decision violate the Montana Constitution’s equal protection provision.
The case stems from “M.B.,” the unnamed Montanan the ACLU is representing. M.B. identifies as nonbinary, and when it came it to filling out forms for a driver’s license, the choices were “male” and “female.” M.B. disclosed an “NB” — presumably for nonbinary — but state officials claim that by not completing the form, they were within their authority to not issue a license. Attorneys for the State of Montana argued in court that the form also includes a disclaimer that says residents cannot be punished for checking the incorrect “sex” form.
Alex Rate, legal director for the ACLU of Montana, said that it boils down to equal protection of the laws: A cisgender person can get a license, but a nonbinary person cannot — even though the courts in Montana have repeatedly recognized that the binary male or female designations are insufficient.
“It’s impossible to discriminate based on gender and not violate the Montana Human Rights Act,” Rate said. “It simply cannot be the case that these laws violate the constitution, but can be allowed under state law.”
Rate also said a close reading of Montana state laws shows that gender identification is not required as information that needs to be collected for a driver’s license.
“What the state is saying, is that you have to be assigned male or female at birth in order to be eligible for a driver’s license,” Rate said. “And the state is arguing that because the person is neither, that the Montana Human Rights Act does not protect that person? That’s absurd.”
But Assistant Attorney General Alwyn Lansing said the case has been incorrectly characterized. Instead, it boils down to a person not filling out the forms, meaning the state could not issue a driver’s license, Lansing argued.
Lansing pointed out that the state specifically outlines that there is no penalty for answering the “gender question” incorrectly on the driver’s license application.
“It is impossible for the state to discriminate based on sex because there is no penalty for answering incorrectly,” she said. “The Montana Department of Motor Vehicles couldn’t process the application because M.B. didn’t complete the form.”
As an analogy, Lansing said that other government agencies, like the Transportation Security Administration, won’t process forms unless they’re completed, so an agency like the Montana Department of Motor Vehicles should have the same flexibility.
“Forms are a part of life, and failure to fill them out means that you risk not getting the benefits,” Lansing said.
“If you argue that the boxes do not matter, why include it?” Vannatta asked. “How does sex qualify a person to drive a vehicle?”
Lansing answered that decision was a philosophical one as well as the prerogative of the Legislature.
That was a theme that Rate continued through closing arguments.
“Why put it on an application if it serves no purpose,” Rate asked. “Why erect that hurdle?”
He also pointed out that his client, M.B., also wrote “NB” on the form, but it was not an option and neither box was checked.
“The MVD could have changed the system. It had options available for eliminating the prompt,” Rate said. “Remember that sex is not statutorily required for a driver’s license.”