Helena Judge Allows Sex Education Lawsuit Against Montana to Proceed

Judge Christopher Abbott of the First Judicial District Court in Lewis and Clark County denied the State of Montana's motion to dismiss a lawsuit brought by school counselors, teachers, students, and allied organizations challenging how two state laws restrict discussions of human sexuality and gender identity in public school classrooms. The ruling, issued around March 18, clears the case, Montana School Counselors Association et al. v. State of Montana et al., for trial.

The lawsuit targets Senate Bill 99, a 2021 law sponsored by Sen. Cary Smith, R-Billings, which requires schools to notify parents 48 hours before any lesson or discussion touching on human sexuality. It also challenges House Bill 471, a 2025 law sponsored by Rep. Jedediah Hinkle, R-Belgrade, which requires parents to explicitly opt their children into subjects covering gender identity or sexual orientation. Both laws passed with most Republicans voting in favor and were signed into law by Governor Greg Gianforte. They were also backed by the state office of public instruction when that office was led by Republicans.

The court rejected the State's arguments that the case should be thrown out, finding that plaintiffs successfully articulated concrete harms. The ruling permits their claims under the Montana Constitution, including the right to privacy, right to free speech, right to due process, and right to a quality education, to proceed.

Named plaintiffs include Montana School Counselors Association, Libby Threadgoode, Brett Thackeray, and Sarah Smith on behalf of her child Izzy Smith, along with the Montana Association of School Psychologists, the social justice nonprofit EmpowerMT, two public school teachers, and two students. They are represented by the ACLU of Montana, Boston-based Nixon Peabody LLP, and Bozeman-based Kasting, Kauffman & Mersen, P.C.

State attorneys, including Department of Justice attorney George Clark, argued during a January 15 hearing before Abbott that the plaintiffs had no real evidence of harm. State attorneys said in court that advocacy groups are on a "wild goose chase" to find examples of students, parents, or educators harmed by the two laws.

Abbott was unmoved. "In short, all students should be able to take advantage of the school system without being forced to surrender their values or be placed in conflict with the values of their parents," Abbott said. The judge described a chilling effect in which fear that "stocking the library with a particular book, counseling an LGBTQ student in crisis or studying some works of literature or theater or art will prompt someone in the community to claim it was un-noticed 'human sexuality' or 'identity' instruction, triggering public outrage, distraction, and possibly discipline." He concluded: "The easier it is, then, to forego anything that could be controversial, no matter how that affects the students."

Plaintiffs described exactly that dynamic in their own words. Erica Parrish, advocacy chair of the Montana School Counselors Association, said SB 99 puts counselors between "the proverbial rock and a hard place." "We can either follow our professional and ethical obligations to our students, or we can follow SB 99's parental notification requirement," Parrish said. "It's impossible to do both."

Student plaintiff Eva Stahl was equally direct. "It really feels like the goal of SB 99 is to silence people," Stahl said. "Teachers are changing how they teach and making it harder for students to access books. I even had one teacher say they were worried about the possible 'employment consequences' of openly supporting 2S-LGBTQIA+ students."

The ACLU of Montana cheered the ruling, saying it will allow teachers and counselors to move ahead with the challenge. With the State's motion to dismiss denied, the parties will proceed toward a trial date to adjudicate the merits of the plaintiffs' claims. No trial date has been set.