Montana Judge Overturns Law Erasing Transgender Legal Recognition

Senate Bill 458 ended legal recognition for transgender people in the state. A Montana judge has ruled that the bill's title is unconstitutionally vague.

Photo by Steven Cordes on Unsplash

Note: This edition of Erin In The Morning is brought to you by Mira Lazine, who is guest writing for Erin In The Morning. Mira Lazine is a freelance journalist covering LGBTQ+ issues, politics, and science.

On Tuesday, Missoula County District Court Judge Shane Vannatta of the 4th Judicial District Court ruled that Montana’s Senate Bill 458, a bill that defined trans people out of the law, was unconstitutional. The order was struck down on a technicality - it was determined that the bill’s title was vague due to there being multiple meanings of the term “sex,” along with a lack of clarity regarding the usage of the words “male” and “female” in the title. Attorneys for the plaintiffs argued that due to the ambiguity in the title, Montanans could come to the conclusion that the state is endorsing discrimination against transgender and intersex individuals.

“The court does not insert its opinion in this order as to what title should have been used or should be used,”Judge Vannatta said. “Rather, the court has concluded that the word ‘sex’ in the title has not been clearly distinguished (i.e.,intercourse or gender) and that the subject in the body of the Bill (providing a definition for ‘female and ‘male’) has not been identified in the title.”

Senate Bill 458 defines sex as strictly belonging to “males” and “females” based on chromosomes and gamete production, making no exception for intersex individuals and thus putting a halt to legal protections for transgender individuals. It redefined sex as such in 41 different legislative contexts, potentially upending the lives of many transgender Montanans. It was signed by Republican Governor Greg Gianforte, and it explicitly ignored the dominant scientific view that sex is a spectrum and can be changed, and is not strictly defined as ‘male’ or ‘female.’

The bill was introduced in 2023 during a Republican-majority legislature that was actively working to oppose transgender rights. The legislature had passed a bill, Senate Bill 99, that banned gender affirming care for minors, however it was later overturned by U.S. District Court Judge Jason Marks. They had also barred lawmaker Zooey Zephyr from the House floor during the legislative session after she pushed back against the gender affirming care ban, citing “decorum” while silencing one of the few transgender representatives in the state.

Judge Vannatta, in a 13-page summary judgement, detailed the arguments of both the plaintiffs and the State. The stated argument of the plaintiffs focused primarily on the vagueness of the bill’s title, whereas the State had little to say in its case. The only argument given by the state was that the bill is exempt from the “Single Subject Rule,” which details that bill titles need to be firmly about a single subject unless they are strictly defined as a general bill, by virtue of it containing “GENERALLY REVISING THE LAWS” in its title. 

However, the plaintiffs argued that this bill was still too vague, and that even with adding something like “for the codification” of the law to it, it nevertheless would have left room for ambiguity. “Plaintiffs' legal analysis on this point is persuasive. Past 'codifications of the law' have included the creation of a new code on a particular subject or a recodification of the Mont. Code Ann,” the judge continues, referring to the Annotated Montana Code that contains the state Constitution. “SB 458 is not a bill for the 'codification and general revision of the laws' of Montana, and its title does not indicate such. Therefore, SB 458 is not exempt from the requirements of Mont. Const. art. V, §11(3)"

The judge also stated that the title is misleading based on the lack of clarity of the term “sex” in the title and a complete lack of “male” or “female” within the title of the bill, and that while it is not his place to decide on what the title should be, he nevertheless has grounds to overturn it as it does not sufficiently explain its core subject matter in the title. He concludes by saying that he cannot “uphold” the constitutionality of the bill based on the lack of clarity in the title.

The case began on December 18, 2023, when the American Civil Liberties Union, along with attorneys from Holland & Hart LLP, filed a formal complaint with the court, entitled Dandilion Cloverdale et al. vs. Austin Knudsen et al, regarding the impact that this bill would have on its plaintiffs, who are all either transgender or intersex. The defendants in the case are Austin Knudsen, the Attorney General of Montana, and the entire state of Montana, which would be represented by the MT Department of Justice.

The complaint argues that they would be erased from the law had the bill been allowed to go into effect. They state, “In the face of that uncertainty the thousands of individuals who do not fall within the unscientific and unsupported definition of sex created by SB 458 must cope with feelings of shame and humiliation, are forced to publicly mis-identify themselves, and will otherwise be treated in a manner that does not accord with their gender identity,” the ACLU wrote in the complaint.”

The ACLU further argued that it was unconstitutional for the bill to go into law, as it would cause undue distress and even lead to discrimination against the plaintiffs - and thereby all transgender people in the state - by virtue of rewriting much of the law to invalidate trans people. They also made appeals based on the overreach of the bill being unconstitutional, as well as the vagueness the bill presents, which was ultimately the turning point for Judge Vannatta.

Alex Rate, Legal Director of the ACLU of Montana, said to Erin in the Morning, “Yesterday's ruling by a district court in Montana that 458 is unconstitutional is just the latest repudiation of the slate of anti-trans policies that were enacted by the 2023 legislature.”

The MT Department of Justice did not respond to a request for comment before the publication of this article.