Kalarchik v. Montana

Two transgender women have filed a class-action lawsuit against the State of Montana and various state agencies and officials challenging a 2022 policy that categorically bars transgender people from correcting the sex designation on their Montana birth certificate. The lawsuit also challenges a policy that makes it impossible for transgender Montanans to update the sex listed on their driver’s license.

In 2021, Montana enacted SB 280, a law that only allows for changes in sex designation on birth certificates “on receipt of a court order indicating that the sex of a person has been changed by surgical procedure.” Two transgender people challenged the law in state court which soon issued a preliminary injunction blocking the state from enforcing SB 280. Ignoring the court, the Montana Department of Public Health and Human Services issued an emergency rule in 2022, which it would later convert to a permanent rule, implementing a total ban on changes to sex designations on birth certificates. That too was blocked until a permanent injunction against SB 280 was issued.

Kalarchik v. Montana challenges that 2022 policy, which the state is now enforcing, as well as a subsequently-adopted policy and practice of the Montana Motor Vehicle Division to no longer allow changes to the sex designations on driver’s licenses. The plaintiffs, represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP, also seek a preliminary injunction blocking enforcement of these regulations, policies, and practices.

Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, says, “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. 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.”