September 23, 2023

Transgender Athlete Bill Declared ‘Unconstitutional’

The court order, issued Wednesday by Gallatin County District Court Judge Rienne McElyea, came one week after oral arguments in a legal challenge brought by the Montana Federation of Public Employees, the Montana Public Interest Research Group and multiple individuals and university faculty associations.

In addition to the transgender athlete ban enacted by House Bill 112, the plaintiffs also argued that lawmakers overextended their authority in passing two other laws affecting college campuses: House Bill 349, which prohibited campuses from limiting support for student groups based on the groups’ activities or beliefs, and Senate Bill 319, which imposed new restrictions on campus political activity.


The Montana Supreme Court came to a similar conclusion in June when it found that regulation of firearms on Montana campuses falls squarely within the authority of the Board of Regents. That decision upheld an earlier order in Lewis and Clark County District Court in favor of the regents, who challenged the Legislature’s passage of more relaxed campus gun provisions in House Bill 102.

In response to the latest ruling on campus issues, Kyle Schmauch, spokesperson for the Legislature’s Republican leadership, invoked a warning issued this summer by HB 102 sponsor Rep. Seth Berglee, R-Joliet, that the Supreme Court’s ruling on his bill introduced a “slippery slope.”

“Now we’re starting to see that play out,” Schmauch wrote in an emailed statement. “The courts seem to be embracing the constitutionally dubious theory that unelected bureaucrats have complete power over every aspect of Montana’s university system, including matters totally independent of academic freedom. Montanans should understand that the courts are striking down the will of their elected representatives while handing more power to unelected bureaucrats.”

The same assessment was expressed by the Montana Department of Justice, with press secretary Emilee Cantrell saying via email that Attorney General Austin Knudsen’s office is reviewing McElyea’s order to “determine the next steps.”

“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 wrote. “Decisions like this from state district courts continue to remind Montanans of the fact that most district court judges are little more than Democrat operatives in black robes.”

Plaintiffs in the Gallatin County case, meanwhile, trumpeted the ruling, with Montana Federation of Public Employees President Amanda Curtis calling it “a win for all Montanans” and cautioning the Legislature that it “needs to stay in its lane.”

“MFPE has a long history defending constitutional rights for all Montanans,” Curtis said in a statement. “I’m not surprised the court found that the Legislature cannot infringe on the Board of Regents’ constitutional authority to govern Montana’s campuses.”

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