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Yellowstone County judge hears arguments over Montana gender-designation law

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Posted at 2:43 PM, Dec 23, 2021
and last updated 2021-12-23 16:43:06-05

One of a dozen challenges to Montana's laws involving transgender issues took center stage in Billings on Wednesday.

A suit challenged the law that makes it difficult to change gender on a birth certificate without first undergoing some type of surgery.

Senate Bill 280 was one of the most debated bills this past legislative session.

The law puts restrictions on when Montanans can change gender designation on a birth certificate.

A hearing in Yellowstone County District Court looked at challenges to that law.

"Typically, under this current impact, what you have is a law that impacts everyone," Akilah Lane, ACLU Montana staff attorney, said in court. "But it harms a group of people more than others. And in this case, this law only harms transgender people. It does not harm everyone else."

"So subsection 2 requires a showing that continuance of the act will produce a great or irreparable injury," Kathleen Smithgall, Montana assistant solicitor general, said on a Zoom call to the court. "But it's not simply enough that you can just claim that a plaintiff can just claim an injury. They must show that this continuing act is going to cause harm."

The Montana Attorney General's Office argues the challenge should be dismissed.

But the LGBTQ+ community and others disagree, arguing the new law violates the state constitutional right to privacy.

"This case is just one of many tools used to erode the equality of the entire community here," said Walt Donges, 406 Pride president. "They can put these requirements on transgender community, what will they put next?"

Donges also said Senate Bill 280's requirement of proof of surgery is unconstitutional.

"I was alive when we did the Montana constitution back in the '70s," Donges said. "And there was always that feeling that everybody is equal in this state. Senate Bill 280 does not allow that. It forces on unusual and burdensome requirements on a section of the community that is already at high risk."

But the attorney for the Department of Justice says the law is constitutional.

"SB 280 applies equally to all individuals," Smithgall said. "Anyone seeking to change to amend stats on their birth certificate must undergo the same process and the state establishes these neutral processes for any amendment to a birth certificate."

Judge Michael Moses heard the arguments, asked each side for more filings and will make a ruling at a later date.