A state judge in Montana heard arguments Thursday over policies that block transgender people from changing the sex designation on their birth certificates and driver’s licenses.
District Court Judge Mike Menahan did not immediately issue a ruling on the request for a preliminary injunction to block those prohibitions while the case moves through the courts.
“We're here today challenging what amounts to the latest manifestation of these defendants' (the state's) singular obsession with singling out transgender Montanans for unequal treatment and discrimination,” said Alex Rate, an attorney for the American Civil Liberties Union of Montana.
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.
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, Rate said, and 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 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 hearing is the latest volley in a series of laws, rules and legal challenges over efforts by Republicans in Montana 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.
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.
Montana is one of seven states that does 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.
Thirty states allow people to change their sex on their driver's license. Montana is among 16 states with what MAP calls a “burdensome process.” Four states do not allow a person to change their sex on their driver's license.
Montana lawmakers in 2023 passed a bill blocking gender-affirming medical care for transgender minors. That law was temporarily blocked in September 2023 — just before it was to take effect. The judge said it was likely unconstitutional and would harm the mental and physical health of minors with gender dysphoria, rather than protect them from experimental treatments, as supporters said it would.
The judge also found that the legislative record in the medical care bill was “replete with animus for transgender persons.” The state has appealed the preliminary injunction to the Montana Supreme Court, which has not yet ruled.
