·  Legal News, Analysis, & Commentary

Civil Rights

Transgender Women Sue Montana Over New Birth Certificate Rules

— April 23, 2024

The two transgender women leading the proposed class-action lawsuit claim that the state’s new rule limiting who can request sex-related alterations to their birth certificate is unconstitutional.

Two transgender women have filed a lawsuit against Montana and several of its state-level agencies, claiming that recent policy changes prohibiting people from changing the sex designation on their birth certificates is unjust and unconstitutional.

Montana has repeatedly tried to complicate procedures to amend birth certificates.

In 2021, for instance, legislators passed a law directing the state Department of Public Health and Human Services to only approve requests filed by persons whose sex had “been changed by surgical procedure.”

Enforcement of this law was later blocked by a district court. However, Montana never rectified its policies, saying that residents cannot alter their birth certificates because sex is an “immutable biological fact, which is not changeable, even by surgery.”

Under the rule’s revision, approved in 2022, health officials said that it would only approve applications in cases where an individual’s sex had been misidentified at birth or otherwise incorrectly recorded. No exceptions were to be made for reasons of “gender transition, gender identity, or change or gender.”

The American Civil Liberties Union, which is representing the two transgender plaintiffs, now claims that Montana has effectively ignored the district court’s edict—and has since erred even further by instructing its Motor Vehicle Division to stop making concessions to drivers wishing to change the sex displayed on their licenses.

The lawsuit also takes aim at Montana Senate Bill 458, which codifies elements of these policies.

LGBTQ flag. Image via Quote Catalog, Flickr, CC BY 2.0, no changes.

SB 458, which was passed last May, states that “there are exactly two sexes, male and female, with two corresponding types of gametes. These sexes are determined by the biological and genetic indication of male or female […] without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.”

The bill, parts of which were drafted by the conservative Montana Family Foundation, stipulates that its language and provisions shall apply even to people “who would otherwise fall within this definition [of male or female] but for a biological or genetic condition.”

The American Civil Liberties Union, in court documents and in its press releases, have lambasted the state’s interpretation of sex—saying that is “draconian,” and infringes upon the constitutional rights of Montana residents.

“Once again the State of Montana has chosen to adopt a draconian policy that is clearly intended to marginalize transgender Montanans,” said ACLU of Montana Executive Director Akilah Deernose. “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.”

Each of the plaintiffs provided press statements, which were relayed through, and published on, the ACLU’s national website. One of the litigants—Jessica Kalarchik—is a U.S. Army veteran, who served in the armed forces for over 30 years.

“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,” Kalarchik said. “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.”


Bill defining ‘sex’ as binary becomes law

Lawsuit challenges Montana’s identification policies for transgender people

Montana sued over refusal to amend transgender people’s identity documents

New Class-Action Lawsuit Challenges Montana’s Refusal to Update Transgender People’s Birth Certificates & Driver’s Licenses

SB 458: Define sex in Montana law

Join the conversation!