Montana judge blocks rule that prevented transgender people from changing their sex on documents
HELENA, Mont. (AP) — A state judge in Montana has temporarily blocked policies that prevented transgender people from changing the sex designation on their birth certificates and driver’s licenses.
District Judge Mike Menahan issued his order Monday, blocking the rule while the case moves through the courts.
Menahan said it was not necessary at this point in the litigation to determine whether transgender Montanans constitute a special class on the basis of their transgender status, but he disagreed with the state’s argument that discrimination on the basis of transgender status is not discrimination on the basis of sex.
“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,” he wrote.
The case was filed in April by two transgender women on behalf of themselves and others who have been unable to obtain documents “that accurately reflect their sex,” the complaint said.
One rule in the state blocks transgender people born in Montana from changing the sex designation on their birth certificate. Another policy prevents transgender residents from changing the sex on their driver’s licenses without an amended birth certificate — which they can’t obtain if they were born in Montana.
Plaintiff Jessica Kalarchik, who was born in Montana, said in a statement Tuesday that she was frustrated that while “being able to live my life openly as the woman I know myself to be,” Montana “wants me to carry around a birth certificate that incorrectly lists my sex as male."
Birth certificates and driver's licenses are needed to apply for a marriage license, a passport, to vote or even to buy a hunting license, Alex Rate, legal counsel for the American Civil Liberties Union of Montana, argued last month. Each time a transgender person is required to produce a document that does not accurately reflect their sex, they are forced to “out” themselves as transgender.
The state had argued that sex is binary, either male or female, and that being transgender is not a protected class of people who could have their constitutional rights to privacy violated.
“The right to privacy does not include a right to replace an objective fact of biological sex on a government document,” Assistant Attorney General Alwyn Lansing argued for the state.
The state attorney general's office, which oversees the motor vehicle division, and state health department, which issues birth certificates, did not immediately respond to emails seeking comment.
The hearing was the latest volley in a series of laws, rules and legal challenges over efforts by Republicans in Montana and many other states to limit the rights of transgender residents. The state has used various justifications in banning changes to identifying documents, including needing accurate statistical records or saying someone's biological sex cannot be changed even though someone's gender identity can.
“The state cannot articulate any legitimate interest in restricting access to accurate identity documents, much less a compelling one,” Rate said during the hearing.
In late 2017, under Democratic Gov. Steve Bullock, the state health department implemented a rule allowing people to change the sex on their birth certificate by signing an affidavit.
In 2021, Montana’s Republican-controlled Legislature and Republican Gov. Greg Gianforte implemented a law saying transgender people could not change the sex on their birth certificate without having undergone surgery. That law was declared unconstitutionally vague because it did not specify what surgery was required. The state was ordered to return to the 2017 rule.
However, in response, the health department — now under Republican leadership — passed a rule saying nobody can change the sex on their birth certificate unless it was to fix a clerical error.
Montana’s Legislature in 2023 passed a law defining the word “sex” in state law as being only male or female and based upon a person’s sex assigned at birth. That law defining “sex” was overturned as unconstitutional because its title did not accurately explain its purpose, but the ACLU argues the state is still using it to set policy with regard to driver’s licenses.
The ACLU asked Judge Menahan to temporarily block the rule and policy and order the state to restore the 2017 rule that allowed transgender people to change the sex designation on their birth certificate by filing an affidavit.
Menahan’s order blocked the 2022 health department rule on birth certificates and the motor vehicle division policy that prevented people from changing the sex on their driver’s license without an amended birth certificate. He also blocked the bill that defined sex as only male or female as it applied to birth certificates and driver’s licenses.
Montana is one of seven states that did not allow people to change the sex on their birth certificate. Twenty-five states do allow it, including 15 that offer an option to list male, female or X. A dozen states allow birth certificate changes following gender-affirming surgical procedures, according to the Movement Advancement Project, an advocacy and information organization.
Thirty states allow people to change their sex on their driver’s license. Montana is among 16 states with what the Movement Advancement Project calls a “burdensome process.” Four states do not allow a person to change their sex on their driver’s license.
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