A district court judge in Helena heard arguments Thursday afternoon from attorneys seeking a preliminary injunction on behalf of two transgender Montanans who argue that a rule from the state public health department preventing them from changing their government documents to denote their gender instead of their birth sex is unconstitutional.

ACLU of Montana attorney Alex Rate told Lewis and Clark County District Court Judge Mike Menahan that the Department of Public Health and Human Services’ rule finalized in February essentially prohibits transgender Montanans from changing the sex designations on their birth certificates.

He argued that the state Motor Vehicle Division is not allowing the plaintiffs, Jessica Kalarchik and Jane Doe, to change their sex designations on their driver’s licenses because they are unable to change those designations on their birth certificates in the first place.

Rate used the words of Missoula County District Court Judge Jason Marks when he struck down a bill to prohibit youth from receiving gender-affirming care in September 2023.

“The purported purpose given for these policies is disingenuous. It seems more likely that the policy’s purpose is to ban an outcome deemed undesirable by the State of Montana. This conduct is replete with animus towards transgender persons,” Rate said, citing Marks’s order.

The state, represented by the Attorney General’s Office, argued that sex and gender are not interchangeable, and that court precedent recognizes sex as a binary of male and female.

The plaintiffs are asking the court to issue an injunction barring DPHHS from enforcing its rule and the MVD from not changing sex designations on driver’s licenses, which has not been introduced as a written policy but one which the plaintiffs’ attorneys say is being enforced on the ground.

They are also seeking to certify a class of transgender Montanans in what they hope will become a class-action lawsuit protecting the rules from being enforced for all current and future transgender Montanans who want to change their birth certificates and IDs or driver’s licenses.

Marks said issuing a preliminary injunction would restore the status quo in place in 2017, when Montanans were allowed to change their sex designations without issue. He said that even though a 2021 law that was similar to the DPHHS rule finalized this year was struck down as unconstitutional, the department was in 2023 found to be in contempt of court for “openly and repeatedly” defying the injunction.

And in February, the department moved ahead with the rule change after the Legislature passed a bill, Senate Bill 458, aiming to state in Montana law that there “are exactly two sexes, male and female.” DPHHS said the only changes to sex designations allowed would be to correct errors on birth certificates. A district court judge this past summer found Senate Bill 458 to be unconstitutional as well, though the state is appealing that decision.

Rate told Menahan that backstory is key to proving that the State of Montana is targeting transgender people with the rule and discriminating against them in violation of the state Constitution, its equal protection clause, and the right to privacy it affords Montanans. He argued the state offered no compelling interest for the rule.

“The state says that this isn’t speech at all, but rather a record. But that is a statement of your sex, and the state is forcing our clients to present their view of their sex,” Rate said. “The state cannot arbitrarily decide what is an individual’s sex and force them to speak that into the world. That is the definition of compelled speech.”

Assistant Attorney General Alwyn Lansing argued on behalf of the state, telling Menahan that the plaintiffs were trying to get the court to make transgender people a protected class.

“To adopt plaintiffs’ argument would be to create a new protected class, which is gender identity, that is in direct conflict with Montana Supreme Court precedent. The Legislature is the only one who could do that,” she said. “…The right to privacy does not include a right to replace an objective fact of biological sex on a government document with subjective gender identity.”

She also contended that since not all transgender Montanans are seeking to update their personal documents, siding with the plaintiffs would prescribe “personal values of some onto the laws which govern all.”

Rate said the state could not rely on Senate Bill 458 because it is enjoined, and the expert testimony the plaintiffs submitted from two medical experts in the transgender field showed there is a strong relationship between sex and gender identity, and that disallowing that expression was harmful and discriminatory to transgender Montanans.

Arguing as to why a class should be certified in the case, ACLU attorney Malita Picasso said state data showed at least 280 Montanans had sought to amend their birth certificates during the past seven years, at least 85 since 2022. She said certifying a class of transgender Montanans who currently or in the future may want to change their sex designations would ensure that any court decision would apply to all transgender Montanans, not just the current plaintiffs in the case.

She also said that certifying a class for the case would prevent confusion should separate cases be filed in other Montana district courts and judges come to differing conclusions. Assistant Attorney General Thane Johnson told the court that whatever Menahan decides regarding the injunction would apply to the entire state of Montana, and he believed the plaintiffs did not meet all the necessary prongs to turn the case into a class-action suit.

Picasso responded that the state’s record showed it would try to fight the changes even if an injunction was granted, however. She said that if Menahan issues an injunction and the two plaintiffs do get their documents changed, the state could then claim the case and injunction were moot because the plaintiffs had gotten the relief they had sought, then apply the same rules to other transgender Montanans.

“If the defendants would like to enter a stipulated agreement in which they, you know, say that they won’t enforce it as to others, then I think that maybe we could reconsider,” Picasso said. “But at this stage, it seems pretty clear that were the injunction to be issued only as to the named plaintiffs, that the defendants would be arguing for that to be limited to just them.”

Menahan did not issue any orders from the bench Thursday and did not state when he might do so following the two-hour hearing.

Tennessee basketball handed Montana its second loss of the young season on Wednesday night, using a big second half to coast past the Grizzlies 92-57.

Following the game, Montana coach Travis DeCuire met with the media and discussed the strong play of his sophomore guard Money Williams, what makes Igor Milicic Jr. tough to defend and more. Here’s everything DeCuire said.

More From RTI: Three Quick Takeaways As Tennessee Coasts Past Montana To Remain Unbeaten

Opening statement 

“Rough night for the Griz. We had a little more fun in the first half than we did in the second half, obviously. I think Coach Barnes’ halftime speech was a little better than mine, in terms of getting this team ready to go in the second half. But I thought we did a good job defensively in the first half taking away some of the rhythm, some of the shots that they were trying to get. Obviously, some some fouls. Got some of their better players out for some stretches, which allowed us to make some runs as well. Second half, they ramped up their defensive intensity and I think we lost ours. To give up 63% in a half, regardless of who we were playing, is not like us. I don’t know the last time we’ve done that. But Chaz Lanier obviously going early in the in the second half and I thought that was a difference in terms of getting that team going.”

On what Montana guard Money Williams did to have such a strong game

“Money is good at making plays, whether it’s in a ball screen or in space. I think he generates offense for us in a lot of ways. Tonight he scored the ball, he made shots. But there are times when he is creating shots for others as well. We just did not have a great shooting night. So he felt he needed to score more for us to stay in the game, which was true.” 

On what adjustments Montana made on defense after Tennessee started 6-for-6 from the field 

“Our biggest thing was beat screens. Coach Barnes still plays a style of basketball that I believe in. A lot of people call it a old school, where you set a lot of screens away from the ball for shooters. From watching them in film, we saw that they really set screens very well. So for us, our goal is to beat the screens, to get through them and not require a bunch of help. And I thought we did a good job at the first half. As fatigue set in, fouls set in, I think we just did not execute that as well in the second.”

On what makes Tennessee’s Igor Milicic so difficult to guard

“Well, he wasn’t difficult to scout. We we knew he made over 100 threes in his previous school, but he hadn’t been shooting threes, or at least not very many. And so they hadn’t really been catering to that. Obviously they made some adjustments. They watched us defensively saw how aggressive we are on the ball screens. So they were looking for that early in the half. And then he got open for some drop-offs and lots out of ball screen coverage. But that wasn’t necessarily him making a play. That was that was (Zakai) Zeigler making a play.” 

On Montana’s defense forcing nine first half turnovers

“We wanted to be physical. We wanted to apply pressure on everyone other than Zeigler. We thought containing him was the most important thing. Not a lot of assists coming from other people. So we thought that if we could apply a little pressure on the post and the wings and force them to try to create, that maybe we could either force some turn some turnovers or low-percentage shots, which that did happen early. But eventually they got out of that.”

On Money Williams being able to attack the Tennessee defense

“We got we got a little taste of that last year. He only played 12 games last year, but his best games were Houston, Nevada. So when the lights are bright, it’s typically when he can’t show enough. Unfortunately his season ended early with an injury, so we weren’t able to see that level of consistency. But we knew he was capable of that.” 

Wishing everyone a good day! Here are some things to know for today:

WEATHER: Expect another day of cooler and above average temperatures in the upper 40’s and 50’s with decreasing clouds. Mostly clear skies will be around tonight with low temperatures in the 20’s. Upper-level troughing moves into the area today, bringing in widespread, gusty winds, up to 40/50 mph. The winds will decrease through tonight. Chances of mountain snow will be around, with the heaviest snow accumulations in Glacier National Park with no winter impacts at this time. Other precipitation is possible in western portions of the state.

Salmonella outbreak in Great Falls: latest information. Click here.

The Station District Bar & Eatery announces new dining options. Click here.

Update on the assault suspect arrested at Great Falls hotel. Click here.

Driver convicted for the death of a Belgrade woman has been sentenced. Click here.

COMING UP: THURSDAY NOVEMBER 14: Opportunities Inc. will host an Energy Awareness Expo from 4pm to 6pm. Join us to learn how to save on utility bills and access essential winter resources. We will have interactive activities, giveaways, warm chili & desserts, and caring staff for you to visit with about any needs you may have. LIEAP staff will be available for those with questions or have paperwork ready to submit. The event will be at 905 First Avenue North in Great Falls. For more information, call Melissa Giard at 406-761-0310.

Here is today’s joke of the day! Share with your friends: Where do cucumbers go on date night? The salad bar!

Email your best joke to montanathismorning@krtv.com

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