Montana Supreme Court upholds ability of transgender residents to update documents

In a divided decision, the Montana Supreme Court’s debate about transgender residents, birth certificates and driver’s licenses have put political differences on full display as the state’s highest court ruled that two state agencies likely violated the Montana Constitution by denying residents the ability to change documents to fit their gender identity.

The State of Montana had challenged two aspects of the case, stemming from Lewis and Clark County District Court Judge Mike Menahan’s order. The first is whether Menahan’s injunction of the Senate Bill 458 was correct. The other issue was whether the law discriminated against transgender residents, not allowing them to change the documents while allowing similarly situated cisgender residents to make changes. Appeals were sent to the Supreme Court before the case could get underway.

The court blocked the Montana Department of Public Health and Human Services as well as the Department of Justice (which operates the Motor Vehicle Division) from refusing to update those documents to match a resident’s gender identity. The majority’s decision led to charges from two of the court’s more conservative members, Chief Justice Cory Swanson and Justice Jim Rice, to accuse the majority of disregarding science, rewriting history, meddling in political debate and deepening rifts between lawmakers and the courts.

“The majority today has blown through all of these prudential instructions to issue a political decision dressed up in constitutional garb,” Swanson wrote in his dissent. “Now that we have spoken from the judicial mountaintop, where is the incentive toward continued public debate, mutual respect, and accommodation? Each side is in fact incentivized to stake out maximalist positions and then rush to the courthouse so the least democratic branch can settle political disputes better left to policy makers.”

The case stems from a challenge that two transgender residents were not allowed to have a driver’s license that matches their gender identity because in order to change the license, the person’s birth certificate must be changed. And, in Montana, the Legislature wants the gender identification marker on a birth certificate to be changed only by a court order because of an error, not because of a mismatch between the sex assigned at birth and gender identification.

The decision fractured the court, with Justice Laurie McKinnon writing for the majority, which included Justices Katherine Bidegaray, Ingrid Gustafson and James Jeremiah Shea.

Justice Beth Baker wrote a concurring opinion, while Swanson wrote a separate dissenting opinion, as did Justice Jim Rice, for a split 5-to-2 decision — demonstrating just how divisive and sensitive the issue has become.

One of the members of the lawsuit, identified just as “Jane Doe,” said that law enforcement officers had detained her in Montana because they were uncertain of her identity because her driver’s license identified her as a male, when she presented as a female.

The court’s majority opinion said that Menahan correctly halted the law, and the plaintiffs, represented by the American Civil Liberties Union of Montana, had their constitutional rights to equal protection violated, largely because the state constitution grants even more protections than the federal constitution.

The majority said that Menahan had also correctly reasoned “cisgender and transgender Montanans are equivalent in all relevant respects other than their status as transgender or cisgender except that only cisgender, and not transgender Montanans can obtain amended birth certificates and driver’s license accurately reflecting their gender identity.”

The majority said that the law forces transgender residents to disclose personal and private information about their gender identity in a way that cisgender residents do not have to, which violates the state constitution.

“(The) plaintiffs alleged and demonstrated concrete, particularized injuries traceable to the state policies. Each time that Ms. Doe or Ms. Kalarchik must present their identifying documents to another person — during a traffic stop, to vote, to apply for employment, or to board a plane — they must disclose they are transgender,” the opinion said. “They must carry and produce a government issued document that does not reflect who they believe they are.

“It is the state’s policies that cause plaintiffs to suffer these real and repeated injuries.”

Much of the majority’s opinion was rooted in Article II, Section 4 of the Montana Constitution, which provides broader protection than the federal constitution:

“Government issued identification documents are necessary to access public life. When they do not accurately reflect a person’s sexual identity, the transgender Montanan is prevented, based on their sex, from obtaining the same attributes of public life that a cisgender Montanan may obtain,” the majority opinion stated.

The opinion teased out the difference between a transgender woman and a cisgender woman for the purposes of explaining the court’s rationale.

“Under the state policies only cisgender Montanans are eligible for birth certificates and driver’s license which match their gender identity. Upon discovering that her sex was incorrectly listed as male on her identity documents, a cisgender woman can update her identity documents,” the ruling said. “Thus, cisgender Montanans can obtain a birth certificate that matches their gender identity. However, a transgender Montanan, such as Ms. Doe, is not allowed to have birth certificates and identity documents which match her gender identity.”

Baker’s concurring opinion

Justice Beth Baker wrote a concurring opinion that departed from the majority, not in its conclusion, but instead focused even more on the specifics of Montana’s individual dignity clause found in the state constitution.

“They are likely to succeed on the merits of their state constitutional claims for the reason that the state cannot constitutionally deny them the same opportunity that any other citizen has to obtain a document of identification that accurately depicts the person’s identity,” Baker wrote. “Human dignity may be violated by denying a person the equal protection of the laws on a sex-based classification. When a person is forced to carry and display a government identification document that does not match who they look like or who they present themselves, this dishonors their dignity.

“When a person looks like and comports themselves as a male and is required by the state to carry identification identifying them as a female, the person is treated differently — and disrespectfully — from a person carrying female identification who looks acts like a female. This is not a trifling indignity.”

Baker also said that when a transgender resident is asked about documents that mismatch their gender and identity, it can create other situations that would be different than a cisgender resident.

“Each time a person must produce identification that does not match the person’s identity, they are vulnerable — in a way a cisgender person is not — to suspicion of fraud or to invasive questioning about private, intimate details,” Baker wrote.

Rice’s dissent

In his dissent, Rice objected to not just the legal application of equal protection, saying the court had made several mistakes, but said the decision by the majority “forces the state to issue falsified legal documents.”

“A correct legal analysis of the governing legal principles leads inexorably to the conclusion that the challenged statute and rules requiring a biological sex designation are not discriminatory in any constitutional sense,” Rice said.

His dissent alleges the majority of the court created a false dichotomy between cisgender and transgender residents. Secondly, he said that documents, especially birth certificates, are historical documents and statements of biological fact — and thus, not discriminatory.

He also said the case is problematic because the courts continue to conflate biological sex with gender identity.

“This use of ‘cisgender’ — a term that is not only inaccurate but potentially offensive … mistakenly theorizes that all people living consistent with their birth sex have made a deliberate ‘gender identity’ decision to adopt such a lifestyle,” Rice said. “There is no evidence whatsoever that every such person has made a ‘gender identity’ decision, as it is completely unnecessary. The need to ‘gender identify’ arises only when people want to live a lifestyle inconsistent with their biological origin.”

He said the court has helped to create a false dichotomy of cisgender people versus transgender to bolster the claim of different discriminatory treatment.

“There can be an error in the preparation of a birth certificate or driver’s license, but there can be no error in the kind of chromosomes a person possesses,” Rice said. “As their briefing explains, gender identity reflects a person’s ‘inner sense of belonging’ to a particular gender, and neither the court nor the state has any power to dictate how a person feels. Yet it does not follow, and absolutely nothing in the Constitution requires, that the state is required to depart from historical, biological sex and replace it with an individual’s gender identity on important government documents.”

Rice also accused the majority of trying to redefine terms and meaning in order to arrive at the conclusion.

“The court’s assertion that, in this case, ‘transgender discrimination is, by its very nature, sex discrimination,’ is true only if words are not accorded their true meanings, and assigned new ones, such that sex no longer means biological sex based upon physical science, but rather also means one’s decision ‘gender identify’ with something other than their birth sex,” Rice said. “If words retain their factual meaning, there is no discrimination at all, because discrimination against transgender Montanas identified by the court exists only after the court conflates biological sex with gender identity.”

To help illustrate his point, Rice employed a scenario where a man identifies as being “trans-age” — or that he was born in 2007, but identified with a person born in 1955. Rice reasoned that someone who claims that they were really someone in their seventies rather than teenager would be able to change documents like driver’s licenses and birth certificates using the same logic. He also warned that this would lead to a number of inaccuracies in government documents.

“Focusing here solely on class analysis, that is, whether two similarly situated classes would exist for trans-aged and ‘cis-aged’ Montanans, the logic of today’s opinion would require the conclusion that the age-accuracy law discriminates against trans-aged individuals,” Rice said, then quoting part of the majority opinion by substituting gender for age.

Rice then cited several other situations in Montana where it is lawful to distinguish between male and female.

“Montana Medicaid’s coverage of cervical-cancer screening is a service necessary only for individuals with a cervix (biological females),” Rice wrote. “A transgender woman (biological male) should be rightfully denied coverage for a cervical screen because he doesn’t have a cervix, while a biological female should receive coverage because she has a cervix. Under the court’s sweeping assertion though, this differential outcome must be framed as ‘transgender discrimination.’”

Swanson’s dissent

The chief justice agreed with Rice’s decision “fully” but then added a separate dissent, which focused on what he felt was an example of the state’s Supreme Court veering too far into the role of the Legislature.

In a rare acknowledgement of the heated debate between the two branches that has caused political fighting for years, Swanson said that this particular decision would only bolster the accusations by Republicans that the state’s judiciary is “legislating from the bench,” and is likely to be used as the GOP tries to make the case to voters that the judiciary should be made a partisan endeavor.

Meanwhile, a separate effort is underway to prohibit judicial candidates from declaring a political party.

“The majority has stepped past the correct and readily available resolution to instead intrude upon the policy-making-and-enforcing authority of the Legislative and Executive branches. It is both unfortunate and unnecessary,” he wrote.

Swanson pointed out that sex and gender definitions were the focus of the decision, but Swanson saw the case differently boiling down to documents and a historical record.

“It is undisputed the two birth certificates (in this case) are the most reasonable accurate record of a historic event — the birth of the human being — based upon the most commonly used methodology of determining whether a newborn baby is a boy or a girl. It is the same methodology humans have been using since we lived in caves or simple mud huts — the appearance of the baby’s genitalia,” Swanson wrote. “Appellees are not challenging the original recording of what sex someone was identified at birth but rather the restriction on who may obtain an amended birth certificate.”

Swanson disagreed with the majority, saying a person doesn’t necessarily have the right to change the birth certificate.

“They also reserve the right to subsequently change their birth certificate to a different gender in the future, without a limiting principle as to their exercise of this so-called fundamental right,” Swanson said. “It does not stretch the imagination to understand why the Legislature declined to codify this scheme.”

Both Rice and Swanson argued that the court’s actions make the birth certificate something more like a gender identity certificate.

“I sympathize with the plaintiffs and with Justice Baker’s desire to make room in our society for any competent adult to express their identity in a manner that comports with their own sense of self and their innate personal dignity,” Swanson said. “The Legislature and the Executive agencies could write statutes and driver’s license policies to accommodate the plaintiff’s wishes, but the Constitution does not compel them to do so.”

Swanson also said that the Montana Supreme Court has set up a new, novel interpretation “based upon spurious reasoning and supported by a bare majority of the court.”

“Such court opinions will not endure, nor should they. The court will have to take a future opportunity, hopefully on a more complete district court record and with parties who have standing all of their claims to clean up this mess and discern the right constitutional holding. Between that day and this, we must suffer the consequences of today’s judicial misadventures.”

What happens next

The decision continues to hold in place Menahan’s order that stops the court from imposing the law that only allows birth certificates to be changed with a court order or in the case of a clerical error. Montanans will continue — until the resolution of the case — to have access to identity documents that match their gender.

The case will head back to Lewis and Clark District Court in Helena for a trial. Regardless of the conclusion of the court case, which could take months or even years, that decision could — and likely — will be appealed to the Montana Supreme Court, which could reconsider or modify its opinion on this issue.

“This is a good day not just for transgender individuals but for all Montanans,” said Akilah Deernose, executive director of the ACLU of Montana. “Our Constitution exists to protect all of us from government overreach and we are pleased that the Montana Supreme Court faithfully interpreted our Equal Protection Clause to protect against unlawful discrimination.”