HELENA, Mont. – Transgender individuals won a key ruling in the fight to change their birth certificates and driver’s licenses, as the Montana Supreme Court has affirmed a temporary injunction against new state laws.
The court sided with the ACLU yesterday in the fight over Senate Bill 458, passed in 2023 to define “sex.” It led the Department of Public Health and Human Services to declare it would only amend a person’s sex on documents if there had been an error.
Jessica Kalarchik and Jane Doe filed suit in 2024 against these policies. They did not want to destroy their original sex designations on their birth certificates but wanted to amend them, the court said.
Kalarchik, a 31-year U.S. Army veteran, was diagnosed with gender dysphoria in 2022 and began taking steps to identify as a woman, including changing her name and sex designation on her Alaska nursing and driver’s licenses. But Montana would not let her change the sex designation on her birth certificate, issued in that state, so she filed suit and obtained an injunction in the trial court.
“And, as the District Court found, nothing in the public record thus far reveals any concrete harm associated with the State’s prior practice of amending birth certificates,” Justice Beth Baker wrote for the majority.
“Based on the personal and private nature of the constitutional rights at issue and that public interest supports the ability to obtain identification documents issued by the government, we conclude the District Court did not abuse its discretion when it found the balance of equities tip in Plaintiff’s favor and the preliminary injunction is in the public record.”
The Supreme Court agreed with the trial judge that the plaintiffs show a likelihood of success as the case moves forward, as state policies “likely” result in unequal treatment and discrimination of transgender and cisgender Montanans.
Justice Jim Rice, though, said the ruling forces the State to falsify legal documents. He called the idea that preventing citizens from changing their sex on them violates due process “flawed.”
“(T)he Court treats a biological male and a biological female as similarly situated when both request that ‘female’ be entered in the sex field of a birth certificate,” Rice wrote.
“The Court rejects what the United States Supreme Court and other courts in the country have recognized: one’s gender identity choice does not constitute a protected class that establishes a basis for a sex discrimination claim.”
That SCOTUS ruling came in Orr v. Trump, which determined transgender individuals could not self-designate their sex on U.S. passports. The ACLU called it a “heartbreaking setback,” and Rice said that though he sympathized with people suffering gender dysphoria, he agreed with the U.S. Supreme Court that listing someone’s sex at birth on a passport is no more offensive than their country of birth.
His dissent was joined by Justice Cory Swanson, who said the plaintiffs could not show they were actually harmed by Montana’s laws. His opinion pleaded with colleagues to decide politically charged issues on the law.
“The more activist the court, the more its uncured decisions fuel the misunderstanding of the judiciary’s role and undermine the moral heft of its reason,” Swanson said.
“In such an environment, it may be more politically rewarding for some parties to lose these cases loudly and spectacularly, rather than win. The Majority’s sweeping and manifestly wrong decision based upon undeveloped constitutional logic and expressed policy preferences has produced more grist for the political mill.
“There’s an old saying in marksmanship: aim small, miss small. The Court today has aimed big and missed by a mile.”
