MISSOULA — On Tuesday, the ACLU of Montana argued in front of Missoula District Court Judge Shane Vanatta that gender identity discrimination is sex based discrimination.
“The Montana Human Rights Commission determined that gender identity is not, or discrimination on the basis of sex, does not include discrimination on the basis of gender identity and in denying our client the driver's license. So we're asking the court today to overrule that determination and say once and for all, as a matter of law, sex discrimination includes gender identity discrimination,” said Alex Rate, legal director for the ACLU of Montana.
The case, Berndt v. Montana Department of Justice, hinges on the sex options on Montana’s Motor Vehicle Division (MVD) driver’s license form.
On the form, there are two options for the sex that someone can choose, male or female. The ACLU argued that if the plaintiff submitted the form choosing a sex that did not align with their identity, they would be subject to perjury, per the form. The plaintiff was seeking an X marker for their sex identification.
The ACLU of Montana also argued that transgender and non-binary individuals fall into a protected class. The ACLU pointed to other cases where the court had found transgender people to belong to a protected class, with a preliminary injunction being placed on the law that sought to have individuals use the bathroom that aligns with their sex assigned at birth.
The state argued in rebuttal that since the plaintiff did not submit the form, there was no discrimination. And even if the plaintiff did, the defense stated that there is a section on the form that states the individual filling out the form would not be subject to prosecution under the law for their choice of which sex they selected.
“That certification reads, ‘I certify under penalty of law that the above information and answers on side one are true and correct, except for my answer about sex.’” said one of the state’s defense attorneys.
However, the current Class D license form (a standard driver’s license) on MVD’s website does not have this text exception for the applicant's answer to the sex identification box.
In a statement to MTN, Amanda Braynack, communications director for Attorney General Austin Knudsen, said, “Of course, 'gender identity' is not a protected class. As noted in court this morning, the issue is that M.B. did not select a sex, therefore did not complete the form, which is why M.B. did not get a driver license. There is no discrimination here, regardless of what the ACLU would like you to believe.”
Whichever way the decision goes, it is expected to be appealed up to the Montana Supreme Court.
