As of the date of this article, no Montana court has explicitly addressed transgender marriage. Of the numerous state courts outside Montana that have addressed transgender marriage, traditional, objective definitions of sex were used that fail to protect the privacy of transgender people and fail to apply laws equally throughout the entire transgender community. This article surveys in depth those out-of-state cases to illustrate the inconsistent reasoning courts have applied when addressing transgender marriage. Then, this article examines contemporary Montana cases regarding gay and lesbian privacy and equal protection. Synthesizing these sources, this article suggests that Montana pioneer transgender marriage recognition through the use of a subjective definition of sex and offers solutions for achieving both legal marriage rights for the entire transgender community and social acceptance of transgender persons. Specifically, transgender persons must be included in the struggle for gay and lesbian marriage equality, Montana should adopt gender-neutral marriage legislation, and Montana should define sex subjectively.
Removal of the Impediment: The State of Transgender Marriage in Montana,
74 Mont. L. Rev.
Available at: https://scholarworks.umt.edu/mlr/vol74/iss2/3