Two transgender women with Montana ties are challenging the state’s near-total ban on residents updating their birth certificates and driver’s licenses to reflect their gender identity. The lawsuit marks the second challenge to the state’s birth certificate policy since 2021.
The lawsuit, filed in Lewis and Clark County District Court on Thursday, specifically challenges three elements of Montana law as unconstitutional: a Department of Public Health and Human Services administrative rule restricting birth certificate changes, a similar policy within the state’s Motor Vehicle Division, and 2023’s Senate Bill 458, a statute defining “sex” as binary.
“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,” one of the plaintiffs, Jessica Kalarchik, said in a written statement provided by her attorneys Thursday. “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.”
Kalarchik, born in Butte, currently lives in Alaska. The other plaintiff is anonymous. Both women are represented by attorneys for the American Civil Liberties Union of Montana.
The women, both of whom seek to change their birth certificates to reflect their gender identity, contend the state’s policies deny them equal protection under the law and violate their right to privacy guaranteed in the Montana Constitution.
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State health department returns to near ban on transgender birth certificate changes
The Montana state health department has announced its return to a near prohibition on individuals updating the sex on their birth certificates to match their gender identity, reigniting a civil rights feud with transgender residents that was the subject of a prior lawsuit.
Montana’s policy toward transgender people who wish to change their birth certificates has followed a long road since the Republican-controlled Legislature in 2021 passed Senate Bill 280, which prohibited Montanans from updating their birth certificates without a court order certifying they had surgically changed their sex.
The law was challenged in court and ultimately enjoined by a Yellowstone County District Court judge. But before the law was permanently blocked, the state public health department adopted a rule further restricting changes to sex on birth certificates except in narrow circumstances. The rule was ultimately blocked because of the lawsuit, and the judge in the case, 13th Judicial District Court Judge Michael Moses, held the Department of Public Health and Human Services in contempt for writing rules related to birth certificates before the related litigation had concluded.
But when the Senate Bill 280 lawsuit was resolved, the state returned to its prior administrative rule, which states “the sex of a registrant on a birth certificate may only be corrected if the sex of an individual was listed incorrectly on the original certificate as a result of a scrivener’s error or a data entry error, or if the sex of the individual was misidentified on the original certificate,” as the state described it in a statement at the time.
“I am frustrated that my birth state, Montana, is forcing me to carry around a birth certificate that incorrectly lists my sex as male.”
plaintiffs Jessica Kalarchik
The health department said that the reinstated rule also complies with a bill passed in the 2023 Legislature, Senate Bill 458, which seeks to create a strict definition of “sex” across state government.
“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” department director Charlie Brereton said in a written statement in February. “This notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.”
The lawsuit filed Thursday challenges the rule, a related Motor Vehicle Division policy that applies similar restrictions to changes on driver’s licenses, and SB 458 to the extent that it’s linked to the two policies. SB 458 is already the subject of several lawsuits challenging its constitutionality, largely because of its alleged vagueness.
The policies “continue the State of Montana’s efforts to limit transgender people’s ability to amend their birth certificates,” the lawsuit reads.
A spokesperson for DPHHS said the department generally does not comment on pending litigation.
Editor’s note: MTFP editor Brad Tyer is married to a plaintiff in a separate lawsuit against Senate Bill 458. Tyer recused himself from the production of this piece, which was edited by Nick Ehli.
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