Montana’s Trans Erasure Law Declared Unconstitutional
A Montana state judge struck down a law preventing transgender people from having their gender identities legally recognized.
A Montana judge ruled that a law seeking to erase transgender existence by defining the term “sex” as narrowly as possible is unconstitutional.
On June 25, Missoula County District Court Judge Shane Vannatta struck down the law on technical grounds in response to a lawsuit from a group of plaintiffs who identify as transgender, intersex, or outside of the gender binary.
While the plaintiffs had sought to challenge the law for denying them legal protections and infringing on their right to free expression, Vanatta did not address those claims.
Instead, he focused on the bill’s title, which he called misleading for failing to define whether “sex” referred to a person’s gender or to the act of sexual intercourse and for failing to indicate that the terms “male” and “female” would be defined in the body of the bill.
Vanatta added that while it is not his place to determine what the title of a bill denying transgender identity should be, he had grounds to overturn the law because its title did not sufficiently explain its core subject matter.
The underlying law passed last year. It is similar to others passed in Kansas and Tennessee, as well as an executive order issued by Republican Gov. Kevin Stitt of Oklahoma.
These laws seek to force state and school officials to only recognize a person’s gender as the sex they were assigned at birth, including with respect to pronouns, and to restrict transgender and nonbinary people from accessing single-sex spaces that align with their biological anatomy at the time of birth.
Like the other measures, Montana’s law defines “male” as “a member of the human species who, under normal development, has XY chromosomes and produces or would produce small, mobile gametes, or sperm, during his life cycle and has a reproductive and endocrine system oriented around the production of those gametes.”
It defines “female” as “a member of the human species who, under normal development, has XX chromosomes and produces or would produce relatively large, relatively immobile gametes, or eggs, during her life cycle and has a reproductive and endocrine system oriented around the production of those gametes.”
Sponsored by State Sen. Carl Glimm (R-Kila), the was drafted in response to a 2022 ruling in which a state judge blocked a separate law requiring people to provide proof that they have undergone gender confirmation surgery in order to amend the gender marker on their birth certificates.
Even though Montana officials openly defied that judge’s ruling, Republicans sought to circumvent the earlier ruling, and others like it, by writing the very concept of transgender identity out of the law.
“Words matter,” said Sean Southard, a spokesman for Republican Gov. Greg Gianforte, who signed the bill. “And this administration is committed to ensuring words have meaning, unlike this judge, who apparently needs a dictionary to discern the difference between a noun and a verb.”
Southard told the Associated Press that the governor is proud of signing the law, which codified the “long-recognized and common-sense” definition of “sex.”
Emilee Cantrell, a spokeswoman for Montana Attorney General Austin Knudsen, said their office would continue to defend the law because it “reflects scientific reality.”
The American Civil Liberties Union of Montana celebrated the ruling.
“Today’s ruling is an important vindication of the safeguards that the Montana Constitution places on legislative enactments,” ACLU of Montana legal director Alex Rate said.
Montana Republicans have been eager to erase LGBTQ identity from public life, pushing various anti-gay or anti-transgender bills. But the courts have pushed back on those efforts. When lawmakers sought to pass a law barring drag performances from public spaces, a federal judge blocked it as a likely infringement on performers’ First Amendment rights.
Similarly, a state judge blocked Republicans’ attempt to restrict transgender minors from accessing gender-affirming treatments as potentially unconstitutional and discriminatory.
When that bill was being debated, Republicans barred State Rep. Zooey Zephyr (D-Missoula) from the House chamber in retaliation for a speech in which she suggested that lawmakers would have “blood on your hands” if the ban led to transgender youth attempting suicide.
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