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ACLU Montana: Stop health department, DOJ from harm to transgender people

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ACLU Montana: Stop health department, DOJ from harm to transgender people

May 18, 2024 | 4:27 pm ET
By Keila Szpaller
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ACLU Montana: Stop health department, DOJ from harm to transgender people
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(Photo illustration by Getty Images)

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.

Class certification request

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