Two transgender women filed a class-action lawsuit against the State of Montana and various state agencies challenging a 2022 policy that categorically bars transgender people from correcting the sex designation on their birth certificates. The lawsuit also challenges a policy that makes it impossible for transgender Montanans to update the sex listed on their driver’s licenses.
In 2021, Montana enacted SB 280, a law that only allows for changes in sex designation on birth certificates “on receipt of a court order indicating that the sex of a person has been changed by surgical procedure.” Two transgender people challenged the law in state court which soon issued a preliminary injunction blocking the state from enforcing SB 280. Ignoring the court, the Montana Department of Public Health and Human Services (DPHHS) issued an emergency rule in 2022, which it would later convert to a permanent rule, implementing a total ban on changes to sex designations on birth certificates.
The lawsuit filed in state court today challenges that 2022 policy, as well as a subsequently-adopted policy and practice of the Motor Vehicle Division to no longer allow changes to the sex designations on driver’s licenses. The plaintiffs, represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP, also seek a preliminary injunction blocking enforcement of these regulations, policies, and practices.
Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, says, “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, is forcing me to carry around a birth certificate that incorrectly lists my sex as male. I am being forced to use a birth certificate that is inaccurate and that places me at risk of discrimination and harassment whenever I have to present it. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male.”
“Once again the State of Montana has chosen to adopt a draconian policy that is clearly intended to marginalize transgender Montanans,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where Courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.”“Forcing anyone to carry documents that contradict their identity violates their right to privacy and is unjust discrimination and unconstitutionally compelled speech,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. The state has repeatedly tried to subvert the freedom of transgender Montanans to control their own identity, and we’ll continue to fight this baseless policy until no transgender person is denied this fundamental right.”
