Montana high court affirms block on binary sex definition
Monique Merrill
(CN) — Montana cannot block transgender residents from changing their government-issued identification documents to align with their gender identity, according to the state Supreme Court.
“Transgender discrimination is, by its very nature, sex discrimination,” Montana Supreme Court Justice Laurie McKinnon wrote on behalf of the majority. “Discrimination based on sex is expressly prohibited under Montana’s unique nondiscrimination clause.”
Enacted in 2023 by the Montana Legislature, Senate Bill 458 defined “sex” as binary and based on the biological and genetic indications present at birth. Shortly after it went into effect, the Department of Health and Human Services announced it would stop amending birth certificates based on “gender transition, gender identity or change of gender.”
In 2024, two transgender Montanans sued the state, arguing the policies violate the state Constitution. Specifically, the plaintiffs requested that they be able to amend the sex designation on their birth certificate and driver’s license as permitted under the state’s previous policy.
At the end of the year, a lower court issued a preliminary injunction blocking the state from enforcing the policies. The court found that cisgender and transgender residents are equivalent in all relevant respects other than their status as transgender or cisgender, but only cisgender Montanans can amend their birth certificates or driver’s licenses to accurately reflect their gender identity, which violates the constitutional right to be free from discrimination on the basis of sex.
The state appealed, arguing that the plaintiffs lacked standing to bring the claim and that the lower court abused its discretion by blocking the policies.
The Montana Supreme Court on Tuesday rejected the state’s arguments.
The state’s highest court found the two plaintiffs have a “vested and deeply personal stake in the ultimate outcome” of the lawsuit, as they must disclose they are transgender each time they present their identifying documents and those documents do not reflect who they believe they are.
In the 5-2 ruling, the majority likewise concluded the lower court properly found the challenged policies discriminated against transgender residents.
“Our Montana Constitution requires the state to treat individuals with dignity even as it exercises its broad police powers,” McKinnon wrote. “This bold constitutional proposition protects all individuals and does so equally.”
While the state policies apply to all Montanans, the plaintiffs showed that the policies result in unequal treatment, McKinnon said.
Supreme Court Justices Jim Rice and Cory Swanson both dissented. Rice described the decision as forcing the state to issue falsified legal documents, and Swanson took issue with the court’s “unnecessary engagement in law-making.”
Counsel for the plaintiffs celebrated the court’s decision.
“Today’s opinion reflects what we all know to be true: that the Montana Constitution protects the human dignity of everyone, including transgender Montanans,” Alex Rate, deputy director of the ACLU-Montana, said in a statement. “Everyone deserves the equal protection of the law, and policies that single out individuals or groups for discrimination and harassment will not withstand constitutional scrutiny.”
The state was less excited about the decision. Chase Scheuer, deputy communications director of the Montana Attorney General’s Office, said the ruling would be expected in a blue state, but not Montana.
“Requiring the state to issue false documents simply doesn’t change the reality that men cannot become women, and women cannot become men,” Scheuer said in a statement. “It’s disappointing, but not surprising, that once again the majority of the Montana Supreme Court chose to advance the agendas of their woke political allies rather than evaluate the case on its facts.”