As I’ve had plenty of occasions to point out, the Montana supreme court may well be the worst state supreme court in the country. On Tuesday, it continued its rampage.
The majority opinion by Justice Laurie McKinnon in Kalarchik v. Montana unthinkingly asserts that “Transgender discrimination is, by its very nature, sex discrimination.” Montana’s constitution expressly prohibits discrimination on the basis of sex. Therefore, the majority reasons, Montana’s refusal to allow transgender individuals to amend their birth certificates and driver’s licenses to change the sex designation to reflect their current gender identity is subject to strict scrutiny.
As a second basis for strict scrutiny, the majority opinion also maintains that transgender status is a “suspect class” under the state constitution’s Equal Protection Clause. (Actually, it ungrammatically and incoherently contends that “Being transgender is also a suspect class.”) Under Montana’s policies, “only cisgender Montanans are eligible for birth certificates and driver’s licenses which match their gender identity.”
As Justice Jim Rice (joined by Chief Justice Cory Swanson) points out in dissent (pp. 34-56):
Today’s decision forces the State to issue falsified legal documents. According to the Court, a biological male is constitutionally entitled to have “female” noted in the sex field of a birth certificate.
The majority opinion is so drenched in transgender ideology that it is supplanting sex with gender identity:
To condemn the State’s Policies as discrimination against transgender individuals on the basis of their sex, when the State’s Policies require only a male’s birth certificate to have an “M” or a female’s birth certificate to have an “F,” requires the sex field on a birth certificate to be synonymous with gender identity.
The majority’s reasoning puts in jeopardy Montana’s ability to preserve girls’ and women’s sports in its public schools; restrooms and shower facilities for women in state buildings; and single-sex housing in university dormitories, homeless shelters, and prisons. In all of these instances, Montana will have to satisfy the supreme court that its sex classification survives strict scrutiny.
What all of these instances have in common is that Montana is distinguishing—i.e., discriminating—on the basis of sex and is disregarding—i.e., not discriminating—on the basis of gender identity. This shows, contrary to the majority’s blithe assertion, that “transgender discrimination” is not, “by its very nature, sex discrimination.” Given the fact that those who identify as transgender assert gender identities that conflict with their sex, distinctions on the basis of sex are incompatible with distinctions on the basis of gender identity. You can’t assign, say, participation on sports teams or use of bathrooms both on the basis of sex and on the basis of gender identity. The Montana supreme court majority fails to grasp that elementary point.
(There might well be sensible accommodations to avoid confusion over individuals who plausibly pass for the opposite sex. That’s a very different matter from claiming that a constitution mandates that gender identity trump sex.)