Perhaps they should call them “gender identity certificates.”
That was Justice Jim Rice’s sardonic suggestion last week, a dig at the Montana Supreme Court majority’s decision allowing transgender individuals to amend their birth certificates and driver’s licenses to reflect their “gender identity.”
Justice Rice was one of two dissenters in the case. Together, he and Chief Justice Cory J. Swanson took the court to task for what they agreed was a ruling based on “a fundamental misunderstanding about equal protection principles.”
The lawsuit brought by two transgender women (i.e., males) arises out of a 2023 Montana law defining “sex” as biological sex. In compliance, the state health department announced it would not honor requests to amend birth certificates based on “gender transition, gender identity, or change of gender.”
The state motor vehicle department also allegedly changed its policy to prohibit individuals from obtaining a driver’s license matching their expressed gender identity—though, according to the record, that policy was never published. Over the dissent’s objection, the court relied instead on one of the plaintiff’s personal accounts of its enforcement.
That plaintiff allegedly feared that her pre-transition driver’s license would put her at risk of criminal prosecution, since it could no longer be used to verify her identity if she were required to produce it.
In 2024, the transgender plaintiffs sued Montana, alleging that the policies violated the state constitution’s equal protection guarantees, among other claims. The district court agreed they likely did and issued a preliminary injunction blocking the policies. The State appealed.
Last Tuesday, the Montana Supreme Court affirmed (there’s no intermediate appeals court in Montana), concluding the lower court had not abused its discretion in finding that the policies likely result in unequal treatment and discrimination based on sex.
“Transgender discrimination is, by its very nature, sex discrimination,” the majority stated. Because sex discrimination involves a fundamental constitutional right, the court applied strict scrutiny—the most demanding constitutional standard—and found the policies wanting, treating transgender and cisgender Montanans unequally in their ability to obtain amended birth certificates.
Justice Beth Baker wrote a separate concurrence to emphasize that the plaintiffs’ claims were also supported by the state constitution’s distinctive guarantee that “the dignity of the human being is inviolable.” In her view, the challenged policies ran afoul of that provision: “When a person is forced to carry and display a government identification document that does not match who they look like or how they present themselves, this dishonors their dignity.”
But facts, not feelings, are supposed to guide the Court, Justice Rice countered: “A case is not resolved by an empathetic reaction that abdicates the law.”
Abdicating the law—and worse—is precisely what he and Chief Justice Swanson accuse the majority of doing in their scathing dissents.
Justice Rice says the Court’s decision “forces the State to issue falsified legal documents: According to the Court, a biological male is constitutionally entitled to have ‘female’ noted in the sex field of a birth certificate.”
Yet, “there is no constitutional violation here,” he writes, “because the State’s statutes and regulations requiring the accurate reporting of birth sex treat every person equally”—regardless of transgender status.
Readers may recall that the federal appeals court for the Sixth Circuit reached the same conclusion—that there is no fundamental right to a birth certificate recording gender identity instead of biological sex—in a case we covered here.
Running through the majority’s reasoning, Justice Rice points out, is a judicial sleight-of-hand embedded in the term “cisgender,” which he calls “a false construct” used to manufacture an allegation of disparate treatment. If words would retain their factual meaning, he concludes, “there is no discrimination at all, because discrimination against transgender Montanans identified by the Court exists only after the Court conflates biological sex with gender identity.”
Chief Justice Swanson called for judicial restraint. By equating gender identity discrimination with sex discrimination, he writes, the majority has usurped the Legislature’s role to “issue a political decision dressed up in constitutional garb”—“saying what the law should be, rather than what the law is.”
Neither of the dissenting Justices swayed the majority, however. And now the court’s mandate for “a new form of document”—the “Gender Identity Certificate”—is the law of the land in Montana.
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