Montana Judge Rules Transgender Sports Rule Unconstitutional

HELENA – A Montana state judge has determined three laws passed by Montana’s Republican-controlled legislature to regulate activities on university campuses are unconstitutional, including one that sought to ban transgender women from participating on female collegiate sports teams.

Montana’s Constitution gives the state board of regents full authority to govern public college campuses and precludes state lawmakers from imposing their own rules, District Court Judge Rienne McElyea said in a ruling issued Wednesday that was emailed to attorneys in the case on Friday. Her ruling noted that the Montana Supreme Court recently affirmed the same conclusion in a challenge to a bill that sought to allow more people to carry guns on campuses.

The ruling is the second judicial setback of the week on laws passed by Montana’s 2021 Legislature that affected transgender residents. A different state judge on Thursday clarified that he temporarily blocked health officials from enforcing a state rule that would prevent transgender people from changing the gender on their birth certificate. In response, the Republican-run state on Thursday said it would defy the order.

The ruling comes amid a heated national debate over whether transgender women should be allowed to participate in female sports at the high school and collegiate level.

At least 12 Republican-led states have passed laws banning transgender women or girls in sports based on the premise that it gives them an unfair competitive advantage. Transgender rights advocates counter that the rules aren’t just about sports, but another way to demean and attack transgender people.

Former members of the state board of regents, a former commissioner of higher education and others challenged the Montana laws in May 2021, not specifically because of their content, but to clarify that the regents, not the Legislature, have the authority to set campus policies.

It’s not believed that the transgender women’s sports bill affected anyone’s athletic participation while it was in effect, said Jeff Tierney, an attorney for the plaintiffs, which included the Montana Federation of Public Employees, a union whose members include higher education employees.

“The Legislature needs to stay in its lane,” said Amanda Curtiss, president of the union.

Montana Attorney General Austin Knudsen, a Republican whose office was defending the law, is reviewing the ruling to determine the administration’s next steps, said Emilee Cantrell, a spokesperson for the office.

“The courts have once again taken authority from Montanans — exercised through their elected legislators — over the campuses their tax dollars fund and given more power to unelected campus administrators,” Cantrell said in a statement.

Another bill that was declared unconstitutional in the ruling appeared to target the Montana Public Interest Research Group, a student-run advocacy organization that registers people to vote and encourages civic involvement. The law sought to make it more difficult for the organization to receive money from student fees and limited where it could participate in voter registration and get-out-the-vote activities on campuses.

Because of the bill, MontPIRG was not allowed to register as a political committee or do any lobbying, said Adrian Cook, the chair of the board of the student-run organization. He said Friday the group hoped to ask the Board of Regents to remove those restrictions because of the ruling.

The third law that was ruled unconstitutional required campuses to provide meeting places and other resources to religious, political or ideological student organizations, even if they hold views that others find offensive.

The Board of Regents in December 2021 won a challenge to a law that would have allowed more people to carry guns on college campuses. The Montana Supreme Court upheld the ruling in late June, agreeing that the Board of Regents has the authority to oversee campus policies.