Court Permits School Anti-2SLGBTQIA+ Censorship Lawsuit to Proceed

HELENA, MT - Yesterday, the First Judicial District Court of Montana permitted Montana School Counselors Association et al. v. State of Montana et al., a lawsuit challenging two bills requiring parental notification prior to instruction on gender identity and sexual orientation, to proceed.

"This Order gives educators, students, and school administrators the opportunity to have their day in court,” said Ashlee Rossler, civil rights staff attorney with the ACLU of Montana. “They will now be able to express their opposition to the Montana Legislature’s latest attempts to further marginalize 2S-LGBTQIA+ students and assert unwarranted control over classroom discourse in Montana’s K-12 public schools.”

In October 2025, Plaintiffs Montana School Counselors Association, Libby Threadgoode, Brett Thackeray, and Sarah Smith on behalf of Izzy Smith filed a lawsuit challenging House Bill 471 (“HB 471”), which restricted instruction on human sexuality, gender identity, and sexual orientation by imposing a 5-14 day parental notification requirement prior to educators providing such instruction and mandating public school professionals publicly post the instruction materials prior to such instruction. The case also challenges a similar law passed in 2021, Senate Bill 99. The Court rejected the State’s arguments that the case should be thrown out, and today’s ruling allows the case to proceed to trial.

Given HB 471’s unconstitutionally vague definitions of gender identity and human sexuality instruction, and the due process violations created by the bill’s punitive measures, Montana’s public school educators and counselors are concerned about the consequences of teaching books like The Great Gatsby and Romeo and Juliet.

As Judge Abbott wrote in the ruling, "it is thus not fanciful to question whether advising a student club, holding a counseling session, running the school library, facilitating a study group, putting together a school performance, or even having an 'open door' policy for students might comprise 'instruction.'"

Elsewhere, the ruling notes, “First, it is not the place of government to prescribe—in schools or elsewhere—what ‘shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Second, public spaces and public resources should be open for all. See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 458–459 (2017). 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.”

Today’s ruling holds that the Plaintiffs have successfully articulated concrete harms resulting from the laws and 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. Now that the Court has denied the State’s request to throw the case out, the parties will proceed towards a trial date to adjudicate the merits of Plaintiffs’ claims.

Plaintiffs are represented by the ACLU of Montana, Nixon Peabody, LLP, and Kasting, Kauffman & Mersen, P.C.

Click here to learn more about the case, MSCA v. State of Montana.