Trans women sue Montana over new policies that risk their public safety

Two transgender women have filed a class-action lawsuit against Montana and several state agencies over the government’s policy forbidding people from changing sex markers on their birth certificates. The inability to change this document puts trans people at risk of discrimination and harassment, the lawsuit’s plaintiffs say.

The lawsuit takes issue with a 2022 rule by the Department of Public Health and Human Services (DPHHS) stating that the department would only change gender on birth certificates if an individual’s sex assigned at birth was misidentified or incorrectly recorded. DPHHS officials said they would not change birth certificate gender markers based on “gender transition, gender identity, or change of gender.”

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In February 2024, the DPHHS said that any amendations on birth certificates would be subject to the provisions of Senate Bill 458. The bill declares, “In human beings there are exactly two sexes, male and female… The sexes are determined by the biological and genetic indication of male and female without regard to an individuals’ psychological, behavioral, social, or chosen or subjective experience of gender.”

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“These two interwoven provisions have incorporated discriminatory definitional principles into Montana law,” the lawsuit states. “SB 458 is scientifically incorrect and improperly seeks to limit the meaning of sex without legal, medical, or scientific justification… sex consists of a complex set of biological, psychological, and social factors, including but not limited to the behavioral or subjective experience of sex.”

Previously, the state’s Senate Bill 280 required people wanting to change the sex designated on their birth certificates to provide proof that their sex had “been changed by surgical procedure.” On April 21, 2022, a state district court blocked SB 280 and ordered DPHHS to reinstate its former procedures, established in 2017, that allowed trans people to change their birth certificates more easily, but DPHHS ignored the court order.

Additionally, the plaintiffs accused the state’s Department of Justice and Attorney General Austin Knudsen of implementing a new rule at the state’s Motor Vehicle Division (MVD) that revoked a previous policy allowing trans people to change the gender marker on their state-issued identification cards and drivers licenses if they had a letter from a doctor stating that the person seeking the change was in, or had completed, the process of changing their sex.

Earlier this year, Knudsen and the state DOJ changed MVD’s policy to only allow people to change gender markers if they presented an amended birth certificate showing the changed gender. Of course, because the state no longer allows trans people to change their birth certificates, trans people must now carry ID cards showing the gender they were assigned at birth, something that often misaligns with their gender identity and expression.

Changing the gender on a birth certificate is the first step to changing gender markers on a person’s government-issued ID documents, including driver’s licenses and passports. If a person’s gender marker doesn’t match their gender identity, it effectively outs a person as trans. This outing can lead to difficulty accessing various services as well as harassment and violence.

The plaintiffs have asked the court for an injunction against the aforementioned policies. The two plaintiffs say that they represent “all transgender people born in Montana who currently want, or who in the future will want” the sex designation on the identity documents changed. They are represented by the American Civil Liberties Union (ACLU), the ACLU of Montana, and the law firm Nixon Peabody LLP, The Hill reported.

“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,” plaintiff Jessica Kalarchik, a U.S. Army veteran, said in a statement. “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,” Kalarchik added. “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.”

An estimated 3,400 trans individuals above the age of 13 live in Montana, the lawsuit claims.