Montana Attorney General Austin Knudsen last week signed on to a Tennessee lawsuit challenging federal protections for transgender people issued by the Biden administration in June.
Twenty Republican attorneys general including Knudsen are seeking to strike down directives by the U.S. Department of Education and other agencies that extend anti-discrimination protections to transgender workers and students. Those directives, the plaintiffs argue, are based on an overly broad interpretation of a 2020 U.S. Supreme Court decision barring employers from firing workers based on sexual orientation or gender identity. Emilee Cantrell, a spokesperson for Knudsen, said in an emailed statement that the states’ lawsuit aims to counter “overreaching actions” by the federal government that affect Montanans.
“The federal guidance challenged in this case would prevent schools from maintaining sex-separated showers and locker rooms, would force them to allow biological males to compete on female sports teams, and compel individuals to use another’s ‘preferred’ pronouns,” Cantrell wrote. “Schools that do not follow this new and expansive guidance — that the Biden administration issued with no public notice or input — are being threatened with having their federal funding unlawfully withheld. Whether it’s defending existing state laws or going on offense against federal overreach, Attorney General Knudsen will fight the far-left’s attempts to force its anti-science ideology onto Montana students.”
The statement from Knudsen’s office repeats characterizations and interpretations about transgender identity and the DOE directive’s requirements that have been disputed by the Biden administration and LGBTQ advocates.
President Joe Biden and his cabinet have routinely joined LGBTQ advocates this year in defending rights and protections for transgender people, maintaining that last year’s Supreme Court decision should rightly extend to educational settings. In announcing the administration’s Title IX directive this June, U.S. Education Secretary Miguel Cardona said “all students — including LGBTQ+ students — deserve the opportunity to learn and thrive in schools that are free from discrimination.”
The legal challenge ties directly to debate this spring over House Bill 112, a measure passed by the Montana Legislature prohibiting transgender women and girls from competing in women’s sports in schools. One of the arguments made by HB 112’s opponents was that the prohibition would jeopardize millions in federal funding for Montana schools by requiring them to violate Title IX. The risk to education funding was a major factor in the Montana University System’s push against the bill.
“The Montana University System is monitoring the lawsuit in Tennessee that is challenging the U.S. Department of Education’s interpretation of Title IX,” MUS spokesperson Helen Thigpen wrote in reply to a request for response to Knudsen’s action last week. “As a recipient of federal funding, the MUS will continue to comply with Title IX as required by law and remains committed to providing a welcoming and inclusive environment for all.”
Lawmakers amended HB 112 to render the law void if federal education officials challenge it as discriminatory under Title IX. HB 112 is one of four new laws being challenged in Gallatin County District Court by a collection of individuals, university-affiliated groups and former members of the Montana Board of Regents.
The Legislature’s approach to transgender issues this spring attracted a diverse array of opponents, among them the cities of Missoula and Bozeman. In an email statement to Montana Free Press this week, Bozeman City Manager Jeff Mihelich reiterated his office’s opposition to any effort to “make Montana a less-welcoming place for the trans community through legislation.”
“We remain opposed to those efforts as the Attorney General now joins with nineteen other states in the courts to oppose equal protections for trans students in the classroom and in extracurricular activities, including sports,” Mihelich wrote. “In Bozeman, we are working to create a safe, welcoming, and inclusive community. Trans people are a part of that community. We will vociferously oppose any efforts that impede our priority of ensuring that Bozeman is an inclusive place where people of all identities can thrive.”
The Tennessee lawsuit isn’t the only transgender-related litigation Knudsen has become involved with this summer. In July, he and 16 other state attorneys general filed an amicus brief supporting the state of Arkansas in a lawsuit challenging that state’s ban on gender-affirming medical treatments for trans youth. The ACLU filed the lawsuit on behalf of four transgender youths in May after Arkansas became the first state to pass a law forbidding doctors from providing puberty blockers, hormone treatments or gender-affirming surgeries to anyone under the age of 18. The brief signed by Knudsen supports the Arkansas Legislature’s decision and defends the new law.
Again, Knudsen’s action connects to recent debate in the Montana Legislature, this time over House Bill 113. That bill, which was similar to the Arkansas ban, failed to pass in the face of strong opposition from LGBTQ advocates, business leaders and medical experts. An attempt by Republicans to resurrect the measure in House Bill 427 was also unsuccessful.
For Shawn Reagor, director of equality and economic justice at the Montana Human Rights Network, Knudsen’s willingness to defend such a law in another state is evidence that his actions are “a political game at the expense of our state’s youth.”
“Clearly this isn’t about sports or even the state of Montana,” Reagor told MTFP. “This is about spreading misinformation about what it means to be trans and attacking a vulnerable community for political gain.”
A related issue is playing out in Yellowstone County District Court, where the ACLU of Montana has challenged a new state law on behalf of two transgender Montanans. Senate Bill 280, passed by the Legislature and signed by Gov. Greg Gianforte on April 30, prevents trans people in the state from amending their birth certificates unless they obtain a court order and have had gender-affirming surgery.
Plaintiffs in A. Marquez v. Gianforte et al. argue that SB 280 makes it difficult, “if not impossible,” for trans Montanans to amend their birth certificates to match their gender and infringes on their privacy by requiring them to release personal information including medical records to a judge. They ask that a judge prevent the law from taking effect while litigation is ongoing. Knudsen responded last month in a legal brief calling those concerns “speculative and hypothetical” and defending SB 280 as nondiscriminatory because “transgender individuals are not a protected or suspected class under Montana or federal law.”
District Judge Michael G. Moses had not yet ruled on the plaintiffs’ injunction request as of Sept. 7.
Through an emergency rule issued Monday, Montana’s public health department has eliminated nearly all options for transgender people to update their birth certificates to reflect their gender identity.
Republican incumbent Matt Rosendale is the clear favorite as he seeks re-election to Congress in Montana’s newly drawn Eastern district. That hasn’t stopped a crew of motivated challengers from trying to convince voters to support a more moderate vision of Montana politics.
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