Montana judge deems requiring college athletes to compete according to biological sex is unconstitutional

A Montana judge ruled that a state ban requiring college-level athletes to compete on teams that align with biological sex is unconstitutional.

Gallatin County District Court Judge Rienne McElyea ruled on Sept. 12 that the “Save Women’s Sports” law infringed on the Montana Board of Regent’s authority to govern university affairs. The law, House Bill 112, was adopted by the state May 2021.

“The Board has overseen athletics programs and promulgated related policies governing participation and non-discrimination since the Board’s inception,” McElyea wrote in the ruling. “The Board has ‘full’ power and responsibility in this realm.”

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McElyea also claimed that the law’s subject was an inappropriate “subject for legislation due to the lack of an existing Board policy specifically addressing transgender students,” and that it contradicts a standing Board policy to adhere to NCAA rules and requirements.

The NCAA updated its transgender policy requirements to be determined on a “sport-by-sport” basis in January.

The ruling also took aim at two other state laws regarding higher education. McElyea argued that the Board has the autonomy to make laws concerning higher education and that additional legislation from the statehouse is an infringement on this right.

House Bill 349, passed in 2021, prohibited universities from discriminating against student groups on the basis of religion, politics, or ideological preferences. This included withholding facility or funding access to groups without just cause.

The law also required universities to draft a policy banning “student-on-student discriminatory harassment” and loosen violations of free speech.

The law did not extend to “expression that is not protected by the first amendment of the United States.”

McElyea argued that the bill “unconstitutionally infringes upon the Board’s authority to oversee student groups and to administer university finances and facilities.”

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Senate Bill 319, also passed in 2021, legislated that “student organizations functioning as political committees” would be funded on-campus “in the same manner as other student organizations.

The bill was also deemed unconstitutional as the right to govern campus policy is reserved for the Board, McElyea ruled.

“None of the bills at issue [in] this case can be fairly characterized as neutral laws of statewide concern,” McElyea concluded. “They do not involve the exercise of the retained legislative powers of appropriation or audit.”

She continued, stating that “[e]ach attempts to directly control internal university affairs and inject legislative policy judgments into [Montana University system] administration” is unconstitutional.

Campus Reform contacted McElyea, MUS, and bill sponsors for comment. This article will be updated accordingly.