MSU Wild, Tuition Freeze

Students walk between classes on Thursday, Nov. 15, on the Montana State University campus.

Montana State University has settled one discrimination lawsuit in federal court involving transgender issues and now the Montana University System faces a new lawsuit in state court alleging discrimination against a transgender woman.

The university last week settled for $120,000 a federal lawsuit brought by Erik Powell, a former student. Powell charged he was discriminated against when MSU kicked him off the Bozeman campus for making comments allegedly threatening violence against a transgender woman student in his class.

This week the same transgender woman brought her own lawsuit against the Montana University System, alleging that the it discriminated against her as a campus employee by refusing to provide medical insurance coverage for her gender-affirming surgery.

The American Civil Liberties Union of Montana is representing Myka Perry in the new lawsuit, which was filed on her behalf Monday in Gallatin County District Court.

The first lawsuit was settled when MSU agreed to pay Powell and to erase from his student record that he was ever disciplined and expelled, said Jesse Binnall, an attorney from Alexandria, Virginia, who took on Powell’s case.

“Erik has a completely clean record with no conduct violations from Montana State University,” Binnall said. “This lawsuit was brought to clear Erik’s name, and we were able to do that. … I’m thrilled for that.

“Erik hasn’t just stood up for his own rights but for thousands of college students all over the country. We now have a court opinion — colleges have to give students due process and Title IX protections. You can’t just railroad kids through a process.”

Powell transferred to MSU-Northern and will graduate soon.

In the settlement, MSU agreed to pay $120,000, said university spokesman Michael Becker.

“Neither party admitted any wrongdoing or liability,” Becker wrote in an email. “MSU is glad to see this resolved so that all parties can move forward.”

U.S. District Court Judge Sam Haddon of Helena had ruled in December that Powell’s lawsuit should go to trial, rejecting MSU’s request to simply dismiss it.

Haddon wrote that MSU’s decision to expel Powell was based on a single statement, which he denies making, and MSU’s own policy “strongly suggests that more than a single statement” is required to find that someone created a “hostile environment.”

Powell was taking a summer class in 2016 on contemporary issues in human sexuality. He privately told the instructor he was uncomfortable with transgenderism and would avoid sitting near or speaking to a student who said she was transgender.

The instructor claimed Powell stated that if the transgender student ever persisted in trying to talk to him he’d “break her face” and that he had guns in his car, comments he later denied making.

The new lawsuit filed this week by the ACLU for Perry says that she has worked as a custodian for MSU since 2015.

In 2017, she sought health insurance coverage for treatment of gender dysphoria — the medical diagnosis that the gender one identifies with is different from the sex he or she was born with.

Perry sought three types of surgery — gender confirmation surgery, facial feminization surgery and surgery to reduce an Adam’s apple.

While university insurance covered the first surgery, the University System refused to cover the second two surgeries, considering them “cosmetic” procedures that are not covered.

Perry’s lawsuit contends that all three surgeries are “medically necessary” and not covering them amounts to discrimination based on sex and gender identity.

Two therapists wrote that the surgeries were necessary for Perry. The lawsuit argues that gender dysphoria is a serious medical condition that when untreated can result in depression, suicidal thoughts and acts.

Perry filed a discrimination complaint with the Montana Human Rights Bureau, which was dismissed in January.

Asked for comment, Becker wrote that MSU does not comment on pending litigation.

This story was changed April 19 and 20 to correct that the defendant in the Myka Perry lawsuit is the Montana University System, not Montana State University, and that MUS denied coverage.

Gail Schontzler can be reached at gails@dailychronicle.com or 406-582-2633. Follow her on Twitter @gailnews.

Gail Schontzler covers schools and Montana State University for the Chronicle.

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