HELENA — Gender identity and the discussion of human sexuality in public schools have been a heated point of contention in Montana and national politics. On Thursday, State District Court Judge Chris Abbott heard arguments on whether to dismiss a lawsuit challenging restrictions on how Montana public schools can teach and discuss human sexuality, orientation and gender identity.
The plaintiffs in the case are a group of Montana students, educators, and organizations representing school counselors and psychiatrists.
(WATCH: State seeks dismissal of case challenging laws regulating gender identity and orientation in public schools)
The lawsuit challenges 2021’s Senate Bill 99, sponsored by Sen. Cary Smith, R-Billings, which requires schools to notify parents 48 hours in advance if they plan to teach or discuss anything related to human sexuality. It also challenges 2025’s House Bill 471, sponsored by Rep. Jedediah Hinkle, R-Belgrade, which requires schools to have parents explicitly opt their children into any subjects regarding gender identity or sexual orientation.
Assistant Attorney General George Clark with the Montana Department of Justice defended the laws, calling for dismissal of the case. The state’s stance is that the pieces of legislation are designed to protect the role of the parent in a child’s upbringing.
“Both federal and state constitutions recognize as fundamental parents' rights to control and direct the upbringing and education of their children,” stated Clark.
The state further made a case that the protected speech in question is “government speech,” which can be regulated by laws enacted by the Montana Legislature. Clark also noted that teachers and schools, even before the laws were enacted, take similar steps to gain parent consent if nudity of any kind is being shown.
Lawyers for the plaintiffs argue the laws violate the Montana Constitution, including rights to freedom of speech, privacy, due process and equal protection.
“Your honor, this case is about the Montana legislature's repeated attempts to restrict discussion on human sexuality, sexual orientation, and gender identity in Montana's K-12 public schools, all under the guise of preserving parental rights and protecting children from inappropriate material,” stated Ashlee Rossler, an attorney with ACLU of Montana.
The plaintiffs also stated the laws are overly broad, with historical works like Shakespeare’s “Romeo and Juliet” potentially meeting the requirements to need parental consent to teach in the high school setting.
Both laws being challenged were passed with most Republicans voting in favor before being signed into law by Governor Greg Gianforte. They were also backed by the state office of public instruction, which was headed by Republicans when both pieces of legislation were heard at the legislature.
Judge Abbott said at the end of the hearing that he would take the issue under advisement and will have his ruling at a later time.
