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Montana court blocks enforcement of ban on gender marker changes

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A state district court granted a preliminary injunction blocking prohibitions on changes on the gender markers on driver's licenses and birth certificates.

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A court in Montana has temporarily blocked enforcement of the state’s policies barring transgender residents from changing the gender marker on their driver’s licenses and birth certificates.

A state district court granted a preliminary injunction against the policies Monday, meaning they can’t be enforced while a lawsuit against them proceeds.

After a prior restriction on amendments of birth certificates was struck down by the courts, in February the state enacted a new rule that categorically bars trans Montanans from correcting the sex designation on their birth certificates. Around the same time, the state Department of Justice adopted a policy similarly restricting amendment of driver’s licenses.

Two trans women filed suit in April challenging these policies, arguing that they violate various constitutional provisions, including the right to equal protection of the law. They are represented by the American Civil Liberties Union, the ACLU of Montana, and the law firm of Nixon Peabody.

In granting the preliminary injunction, the court held, “If the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.”

Last week, when the Montana Supreme Court upheld an injunction against the state’s ban on gender-affirming care for trans youth, two justices filed concurring opinions in which they argued that the court should clarify that discrimination based on transgender status is sex discrimination and therefore prohibited under the state constitution’s equal protection clause.

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“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, who served in the U.S. Army for 31 years, said in an ACLU press release. “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.”

“Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director of the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.”

“Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” added Malita Picasso, staff attorney for the national ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the State of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.”

The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but meanwhile the underlying case will proceed in district court. A trial has not yet been scheduled.

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