Lawsuit: DOJ Quietly Changed Policy for Changing Gender Markers on Driver’s Licenses

By Nicole Girten for the Daily Montanan

The Montana Department of Justice quietly adopted a new policy for changing gender markers on Montana driver’s licenses that would require transgender Montanans to provide an amended birth certificate, as opposed to only requiring a note from a doctor.

That’s according to a class action lawsuit filed by the ACLU of Montana on Thursday, which is asking the court to declare the new Motor Vehicle Division policy unconstitutional. The lawsuit targets a rule enacted by the state’s health department in 2022 which plaintiffs claim bans transgender applicants from changing the sex marker on their birth certificate.

This lawsuit follows other legal challenges in recent years involving legislation and rules regarding changing gender markers on birth certificates in the Treasure State. A law passed during the 2021 legislature restricting changes to birth certificates was found unconstitutional and there are two other ongoing lawsuits surrounding a 2023 law defining sex as binary in statute.

Defendants listed in the lawsuit include Attorney General Austin Knudsen, the Montana DOJ, Gov. Greg Gianforte, the Department of Public Health and Human Services and DPHHS Director Charlie Brereton.

A spokesperson for Gov. Gianforte said Thursday the governor “stands by the bill he signed in 2023 that brings the long-recognized, commonsense, immutable biologically-based definition of sex — male and female — into our state laws.”

“It is no surprise the ACLU would wade into Montana to challenge commonsense, immutable biological facts to advance its far left agenda,” the spokesperson said in an emailed statement.

A DPHHS spokesperson said the department does not generally comment on on-going litigation and a spokesperson for the DOJ did not respond to emailed questions in time for publication.

Plaintiffs include a former Montana resident and transgender woman, Jessica Kalarchik, who is looking to change the gender marker on her birth certificate, and Jane Doe, a transgender woman looking to change the gender marker on both her birth certificate and her driver’s license.

Plaintiffs claim the 2022 rule, the 2023 law and the new DMV protocol go against protections in Montana’s constitution.

Plaintiff Doe avoids using public restrooms and changing rooms for fear of mistreatment or violence. She’s already faced mistreatment from people in her life after coming out, according to the lawsuit.

Doe worries about showing her identification documents with her gender assigned at birth to someone who may react negatively.

“Ms. Doe is typically perceived as female, so anytime she is forced to present an identity document that incorrectly identifies her as male, she is forced to ‘out’ herself as transgender,” the lawsuit read. “As Ms. Doe’s appearance has shifted, her driver’s license no longer matches her appearance, and she has experienced increasing issues with this disparity.”

Kalarchik, 49, is a transgender woman and veteran who was born in Butte and currently lives in Anchorage, Alaska, with her wife, Renee. She’s looking to have the gender marker amended on her birth certificate for similar fears of retaliation as Doe. The lawsuit said she has previously experienced incidents of harassment and discrimination in both her personal and professional life.

Kalarchik started hormone therapy in 2022 and has legally changed her name and sex marker on both her Alaska driver’s license and her Social Security card.

The lawsuit said the 2022 rule and Senate Bill 458, which defines sex as binary and passed in 2023, prevent Kalarchik from changing the gender marker on her birth certificate.

DPHHS announced in February the department was reinstating the 2022 rule, which only allows changes to birth certificates in the event the gender marker was listed incorrectly as a result of a data entry error and does not authorize changes “based on gender transition, gender identity, or change of gender.”

“The effect of the 2022 Rule is to categorically ban transgender applicants from obtaining birth-certificate amendments to reflect the sex they know themselves to be,” the lawsuit said.

The rule was first enacted as the state was in ongoing litigation surrounding a similar law passed in 2021, Senate Bill 280, which restricted transgender Montanans’ ability to amend the gender markers on their birth certificates.

The court temporarily blocked SB 280 in 2022, and the state needed to re-institute the previous process for changing birth certificates as litigation continued – which only required an applicant to submit a supporting affidavit. But the state did not, and instead passed the 2022 rule. The court found the state in contempt for going against the preliminary injunction and also found SB 280 to be unconstitutional.

In February, DPHHS said the 2022 rule aligns with SB 458, the sex definition bill sponsored by Sen. Carl Glimm, R-Kila, who also sponsored SB 280. There are two open lawsuits against SB 458. Brereton said in the February announcement DPHHS “must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule.”

Plaintiffs are claiming the 2022 Rule, the new MVD policy, and SB 458 (within the context of amending birth certificates and driver’s licenses) are not constitutional. The lawsuit argues the policies violate protections in the Montana constitution for privacy, equal protection under the law, and against compelled speech.

The lawsuit says the policies are inherently discriminatory and require compelled speech in that in order to comply, transgender people have to “misidentify themselves by a sex designation that does not accurately state their sex.”

The filing said the “essential danger” of these policies are they “require transgender Montanans to carry identity documents that are contrary to the sex they know themselves to be” and therefore increase risk of potential discrimination or violence.

Plaintiffs are asking to establish a class that would include all transgender people born in Montana who currently or in the future wish to change the gender marker on their birth certificate or driver’s license.