The Montana Supreme Court’s decision last week in Kalarchik v. State should put to rest the Right’s celebratory mantra that “woke is dead.” It isn’t.
In a 5–2 ruling, the court upheld a preliminary injunction blocking enforcement of key parts of Montana’s 2023 law, SB 458, and related agency policies that defined sex in binary, biological terms and limited changes to birth certificates and driver’s licenses.
The ruling does not finally invalidate the law, but it allows Montanans with transgender or “nonbinary” identities to continue changing the sex marker on identity documents while the constitutional challenge proceeds. More importantly, the majority signaled its view that the challenged policies likely violate Montana’s constitution, holding that “transgender discrimination is, by its very nature, sex discrimination” and subjecting the state’s policy to strict scrutiny.