Metro Weekly

Montana Judge Declares College Trans Ban Unconstitutional

Judge blocks restrictions on college athletes, ruling that the Board of Regents may determine its own policies on athlete eligibility.

Female lacrosse players – Photo: Susan Leggett, via Dreamstime.

A Montana judge has ruled that part of the state’s 2021 law barring transgender athletes from competing on sports teams that align with their gender identity is unconstitutional. 

On Sept. 14, Gallatin County District Judge Rienne McElyea issued an injunction permanently barring the state from enforcing a provision in the law that prohibits transgender athletes from participating on collegiate-level women’s sports teams.

McElyea found that, in passing the law, the state’s Republican-led Legislature infringed on the constitutional authority of the Montana Board of Regents, which is allowed to make its own policies governing college campuses.

The ruling does not overturn part of the law prohibiting transgender athletes in grades K-12 from competing in sports that match their gender identity.

In her ruling, McElyea rejected the state’s argument that the Board of Regents had no existing policies regarding athlete participation, finding that the board’s decision to comply with NCAA regulations on transgender participation was in itself a policy, reports the Helena Independent Record.

“Contrary to the state’s characterization, the Board’s policy is not a delegation of the Board’s constitutional authority to a non-governmental body [NCAA], but an exercise of the Board’s authority to ensure the eligibility of Montana athletes and to protect the [Montana University System’s] substantial financial investment in its athletics programs,” she wrote.

Current NCAA policy on transgender athletes allows each individual sports’ national governing body to determine its own criteria for eligibility. That policy also requires transgender athletes — primarily transgender females — to submit documentation providing evidence of sport-specific testosterone levels at the beginning of their season, four weeks before their sport’s championship selections, and six months afterwards.

For most female-designated sports, transgender males may still opt to compete against women, as long as they have not begun hormone therapy — although their testosterone levels are likely to be monitored as well, to ensure they aren’t enjoying an unfair advantage over other competitors.

McElyea’s ruling came a week after she heard oral arguments in a lawsuit challenging the law brought by the Montana Federation of Public Employees, the Montana Public Interest Research Group and multiple transgender individuals and university faculty associations, reports the Montana Free Press.

McElyea also struck down two other laws due to similar legislative overreach: one, aimed at fighting “cancel culture,” which prohibits campuses from limiting support for student groups based on the groups’ activities or beliefs, and another, which required students to “opt in” to additional student fees directed to organizations functioning as political committees. A separate provision in the latter law restricting where and when political speech could occur on a college campus was already ruled unconstitutional earlier this year.

The Montana Supreme Court reached a similar conclusion in June when it declared a new law relaxing existing restrictions on firearms on Montana’s college campuses to be unconstitutional. 

Kyle Schmauch, a spokesperson for the Legislature’s Republican leadership, echoed a warning issued earlier this summer by the sponsor of the firearms bill, Rep. Seth Berglee (R-Joliet), who said that the Supreme Court’s ruling had introduced a “slippery slope,” in which laws governing on-campus conduct and speech will be struck down in favor of rulings and determinations made by unelected bureaucrats overseeing Montana’s university system.

“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,” Schmauch told the Free Press in an email.

The Montana Department of Justice made similar remarks, characterizing the ruling as a power grab.

“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,” the department’s press secretary, Emilee Cantrell, said in a statement. “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.”

But plaintiffs in the case challenging the transgender athlete ban celebrated the ruling “a win for all Montanans” and warned the Legislature that its efforts will be slapped down if it oversteps its authority once more. 

“MPFE has a long history of defending constitutional rights for all Montanans,” MPFE President Amanda 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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