People who are transgender need to be able to amend their birth certificates and driver’s licenses without interference from the state of Montana, plaintiffs in a lawsuit argued this week in a request for a preliminary injunction.

So the Lewis and Clark County District Court should block the Department of Public Health and Human Services and the Department of Justice from unconstitutionally preventing them, the plaintiffs said.

The status quo not only violates the constitutional rights of transgender Montanans, it causes harm, said the motion filed Thursday.

“Uncorrected identity documents serve as constant reminders that one’s identity is perceived by society and the government as ‘illegitimate,’” said the ACLU Montana in the filing.

The result can exacerbate gender dysphoria — a serious medical condition associated with incongruity between assigned sex and gender identity — and cause psychiatric disorders and even the risk of suicide, the plaintiffs said.

On the other hand, The World Professional Association for Transgender Health states that “changing the sex designation on identity documents greatly helps alleviate gender dysphoria,” the filing said.

Last month, the ACLU Montana filed a lawsuit on behalf of Jessica Kalarchik, Jane Doe, and “all others similarly situated” alleging Gov. Greg Gianforte, the Department of Public Health and Human Services, and the Department of Justice are violating the constitutional rights of transgender people.

The plaintiffs argue people who are transgender used to be able to amend their birth certificates without issue and without negative consequences to the state.

However, a 2022 rule through the health department, a new Motor Vehicle Department practice through the DOJ, and Senate Bill 458 treat them differently than cisgender people — whose gender identity corresponds to their assigned sex — and infringes on their rights.

“The 2022 Rule, the new MVD policy and practice, and SB 458 are solutions in search of a problem,” the plaintiffs said.

A spokesperson for Gianforte earlier said the governor stands by the bill he signed in 2023 “that brings the long-recognized, commonsense, immutable biologically-based definition of sex — male and female — into our state laws.”

The state health department earlier said it does not typically comment on pending litigation. The Department of Justice earlier denied the MVD had changed its policy on updating a sex designation on a driver’s license.

This week, the plaintiffs asked the court for a preliminary injunction to stop enforcement of the rule, practice and law, citing infringement of their constitutionally protected rights.

They also asked the court to certify the lawsuit as a class action on behalf of all Montanans who are transgender and need to change their birth certificates and driver’s licenses.

The American Civil Liberties Union Foundation of New York and Nixon Peabody of Chicago also are representing plaintiffs, pending approval from the court.

DPHHS Director Charlie Brereton and Attorney General Austin Knudsen also are sued as heads of state agencies.

Different law, same fight

Starting in 2017, people who were transgender could change their sex designations by submitting an affidavit to the health department.

In 2021, the Montana Legislature adopted Senate Bill 280, which restricted the ability of people who are transgender to change their birth certificates. But in a separate lawsuit, the court temporarily halted the law and ordered the health department to use the 2017 process instead.

“DPHHS pointed to no adverse consequence of having had to revert to the 2017 procedure,” said the filing this week.

The district court permanently enjoined SB 280 in 2023 and also found DPHHS to be in contempt for “openly and repeatedly defying” its order.

In February 2024, however, the state health department said it wouldn’t amend birth certificates based on gender identity, but only to correct errors, citing an administrative rule from 2022 and its alignment with Senate Bill 458.

Signed by Gianforte in 2023, SB 458 states that “there are exactly two sexes, male and female … (and) the sexes are determined … without regard to an individual’s psychological, behavioral, social, chosen or subjective experience of gender.”

The DOJ took action this year as well, ending the prior practice at the MVD of allowing changes to sex based on a letter from a doctor stating the person was changing or had changed their gender, according to the court filing.

“Instead, without following any notice-and-comment procedure, the DOJ and Attorney General Austin Knudsen adopted a new policy and practice that the MVD would only issue an amended driver’s license with a sex designation consistent with a person’s gender identity, rather than their assigned sex at birth, if the person provided an amended birth certificate — which the 2022 Rule prohibits transgender people from obtaining,” said the filing.

Constitutional rights violated, plaintiffs allege

The plaintiffs argue the changes violate multiple constitutional rights.

They violate their right to equal protection because the health department and MVD “single out transgender people for different and less favorable treatment vis-a-vis cisgender people,” the filing said.

The rule and practice also don’t serve a compelling state interest, the plaintiffs said.

In fact, 45 other states allow transgender people to amend their sex markers on their birth certificates, and 38 allow them to change the same on their driver’s licenses without an amended birth certificate, the filing said.

“Many of these states have allowed these changes to birth certificates and driver’s licenses for years without any widespread problems with the ability of those states to maintain ‘accurate vital statistics,’” the filing said.

They noted Montana was in the same boat earlier, making changes at the health department “without incident” from 2017 until the 2021 law was adopted.

The plaintiffs also argue that the rule, MVD practice and law violate the right to privacy, which the Montana Constitution says is “essential to the well-being of a free society.”

The state says that right shall not be infringed without a compelling state interest,” and the plaintiffs note the state affords even broader privacy protections than the federal constitution.

And they said health information is personal, sensitive and private.

“The mental and emotional toll of being forced, against one’s will, to publicly share personal information related to one’s transgender status is both humiliating and degrading,” the plaintiffs said.

If transgender people can’t change their birth certificates, they’re forced to reveal their transgender status every time they’re required to show those documents, the plaintiffs said.

“This forced ‘outing’ has serious adverse psychological effects and health consequences and often results in outright hostility toward transgender people,” said the court filing.

“Conversely, transgender people whose identity documents are consistent with the way they present themselves to the public experience better mental health and less mistreatment.”

The plaintiffs cited a study that said transgender people who changed their sex designation on documents were 35% less likely to have experienced related mistreatment than those who hadn’t made the changes.

“Other studies have shown that accurate identity documents promote economic benefits, including higher rates of employment and increased income,” the plaintiffs said.

They noted nearly one-third of transender people fall below the poverty line and the same number have experienced homelessness.

The state also is forcing people who are transgender to “express or embrace a viewpoint to which they disagree,” in violation of the right to be free from compelled speech, the plaintiffs allege.

Rather, transgender people are forced to carry and present identity documents with a sex designation that conflicts with what they know their sex to be and one that forces them to “disseminate the state’s view of their sex,” the plaintiffs argue.

The rule, policy and law are also “scientifically incorrect,” said the court filing.

“They ignore the existence of multiple genes involved in sex differentiation; the breadth of the endocrine system, which has multiple organs with multiple functions; and growing research documenting that gender identity is biologically based,” the plaintiffs said.

The plaintiffs also propose a class that includes all transgender people in Montana who want to change sex designations on their birth certificates or driver’s licenses.

Citing a study, the filing estimates roughly 0.41% of Montanans over 18 identify as transgender, or more than 3,400, and an estimated 49% don’t have documents that reflect the sex to which they identify, or some 1,700.

It said a class action case would account for the high number of potential plaintiffs, their geographic dispersion in a state such as Montana, the resources of the court, the resources of individual class members, and their vulnerability to threats of violence.

“Proceeding as a class diminishes the salience of such threats to any individual class member, as there is both safety in numbers and relative anonymity for class members,” said the request for class certification.

Kalarchik, prelim injunction Kalarchik, class certification

BILLINGS — The accomplishments of nearly a dozen Build Montana graduates were celebrated during a ceremony at COP Construction in Billings on Friday.

“All my friends are at school right now and I’m working machines and stuff,” said Abby Barlagee, a program graduate.

Build Montana provides high school students with opportunities to network with trade industry professionals, get hands with materials, and receive certifications prior to apprenticeships. It’s a partnership among the Montana Contractors Association, the Montana Equipment Dealers’ Association, and the MCA Education Foundation.

“I’m excited that I get to go straight into an industry that I know that I like,” said Merrick Choriki, a graduate who will head to ThinkBIG with Caterpillar Inc. after graduating high school.

Many of the recent graduates said they were looking forward to the money in their respective trades, including several with starting salaries of $60,000 per year.

“It is good money, but honestly, I don’t really think about that. I think it’s just kind of fun,” said Barlagee.

HELENA — MTN is continuing our look at the closely watched races for two open seats on Montana’s Supreme Court.

Justice Dirk Sandefur was elected to the court in 2016, and he decided not to seek another eight-year term in 2024. That led to three people filing for a chance to win one of the six associate justice positions. The two candidates with the most votes in the June primary will move on to the general election in November.

The first two people to announce they were running for associate justice are both state district court judges.

Dan Wilson, of Kalispell, is one of five judges of the 11^th Judicial District, which covers Flathead County. He was elected to the position in 2016 and reelected in 2022. Wilson previously worked as a deputy county attorney, then spent about a decade in private practice, doing a variety of work – including family law and criminal defense. In 2010, he was elected as a justice of the peace for Flathead County. He says he wants to center his campaign on his experience and record.

“I’m not running to carry water for any sort of political issue or any political group,” Wilson said. “I’m merely offering up again my candidacy to Montanans as a judge with a proven record for following the law and the Constitution, and one who doesn’t insert his own views or the views of stakeholders or interested parties or special interests to determine whether something passes a legal test or not.”

Wilson says recent political tensions around the court are an inevitable when branches of government are in conflict over their roles. He said it’s important for justices to hold to legal standards when making their decisions, and that he doesn’t believe Montanans want justices to advocate for particular interests.

“The Supreme Court functions best, I believe, when it is the quiet branch, when it’s simply there resolving disputes in a fair and constitutional way – that it does its level best to avoid making unsolicited or unnecessary comments attacking any other branch of government, but simply issues opinions that are well supported by the Constitution, the rule of law, logic and good reason,” he said.

Jonathon Ambarian

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Katherine Bidegaray, of Sidney, has been a district judge since 2003 – one of two serving the 7^th Judicial District, which covers Richland, Dawson, McCone, Prairie and Wibaux Counties on Montana’s eastern edge. She said her rural and eastern Montana background would bring a different perspective to the court.

Bidegaray says the current Supreme Court justices are doing a good job, citing a state survey of judges and attorneys that showed 80% of respondents agreed the court’s decisions were based on facts and applicable law. She said accusations that the court has overstepped its role are misplaced.

“I think it is especially important during these times that we have a judiciary that remains fair and impartial, that remains independent of the other two branches of government, and that is prepared to fulfill its function of correcting an abuse of power if, in fact, one of the other two branches of government, including the legislature, overreaches the constitutionally provided powers it has,” she said.

Bidegaray says it’s important to stand up against what she sees as political attacks on the judiciary.

“I just want to be able to do my part so we can maintain our democracy and the rule of law and protect the beautiful rights that our Montana Constitution provides us, which include some really unique rights: the right to privacy, the right to equality of education, the right to access to public lands and water, and the right to a clean and healthful environment,” she said. “Those are unique in our Constitution, and those rights have been under attack.”

Jonathon Ambarian

The third candidate is in an unusual position: admitting his eligibility for the court is likely to be questioned. Jerry O’Neil is a former Republican state lawmaker from Columbia Falls who spent eight years in the state Senate and four years in the House. He describes himself as a mediator and independent paralegal, but he’s not a licensed attorney under the State Bar of Montana.

The Montana Constitution says candidates for Supreme Court must have been “admitted to the practice of law in Montana for five years.” O’Neil says the court and the bar are acting as a “monopoly” by preventing someone from getting licensed as an attorney or practicing law in state courts without having attended an accredited law school.

In December, he filed a federal lawsuit, asking the court to rule that he was eligible to run for Montana Supreme Court because he has been admitted to practice law in Blackfeet tribal court. However, after he filed his candidacy, he dropped the case, telling MTN he thought the judge would likely rule against him “to protect his monopoly.”

O’Neil said, if he wins, he believes his election would not be challenged.

“They might do it, but I don’t think they’re going to go against the public like that,” he said.

O’Neil said he was running for the Supreme Court because he believed justices had been overstepping their role on issues like abortion and election regulations, and because he wanted to further challenge the court and the bar.

“The voters I’ve talked to are up in arms over the Supreme Court legislating from the bench, and the majority of them, virtually all of them, are not appreciative of the attorney monopoly,” he said.

Montana voters will also select a new chief justice this year. Three candidates are also running for that position.