Group sues state, saying professional boards shouldn’t include consideration of race, gender

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Montana Gov. Greg Gianforte speaks at conference promoting new tools for those in addiction treatment in Billings on July 27, 2021 (Photo by Darrell Ehrlick of the Daily Montanan).

A nationwide organization of medical professionals has filed suit against the State of Montana, alleging that by trying to prevent discrimination, the state has been guilty of perpetuating it.

For decades.

The organization, Do No Harm, has a variety of challenges throughout the nation’s courts. On Tuesday, it filed suit in federal district court in Helena alleging that the requirements for appointment to the state’s board of medical examiners, which oversees licensing many medical professionals, discriminates because it requires both a gender and racial balance — something that potential qualified applicants do not control.

Do No Harm represents physicians, nurses, medical students, patients and policymakers focused on keeping identity politics out of medical education, research, and clinical practice, according to its website.

Montana’s Board of Medical Examiners is comprised of 12 members, but its rules are specific and complex. Five of the members must be doctors of medicine, with at least one of them having experience in emergency medicine, and none of them can be from the same county (Montana has 56 counties). All of the doctors must have been practicing in Montana for at least a year and be in good standing. The remaining seven seats on the board have to be a doctor of osteopathy, one podiatrist, one nutritionist, one physician assistant, one emergency care provider and two public members.

Do No Harm, in its federal court complaint, says that forcing the governor to appoint members based on a gender or race is discriminatory, and disqualifies candidates who are otherwise able to fill those roles, except for race or gender. Moreover, the lawsuit said that it forces Montana’s governors, including current officeholder Gov. Greg Gianforte, from selecting the best qualified candidates, or even those who want to serve on the boards.

They argue that Montana’s rules, crafted decades ago by the Montana Legislature, are a violation of the federal constitution’s equal protection clause.

“Such blatant discrimination against individuals who could sit on the board serves no legitimate government purpose. It is demeaning, patronizing, un-American, and unconstitutional,” the court brief said.

Gianforte’s office did not respond to requests for comment on Tuesday afternoon. Gianforte is vested with the power of appointing the board of medical examiners, as have other governors in the past.

The rule that provides the gender and racial balance for state boards was first raised by the 1989 Legislature, in which House Joint Resolution 28 succeeded, and urged that “all appointive boards, commissions, committees, and councils of the state be gender-balanced,” according to the complaint. The lawmakers at the time noticed that less than one-quarter of the boards had a gender balance.

Two years later, the Legislature passed House Bill 424, which required gender balance and racial balance that reflected the population of Montana “to the greatest extent possible.”

“Throughout the legislative discussions, the governmental interest asserted was a desire for equal representation for women and racial minorities on boards and commissions,” the lawsuit said.

However, the lawsuit says appointing members based on race or gender is not necessary or appropriate when considering medical qualifications.

“The racial mandate (in law) does not serve a compelling government interest,” the lawsuit said. “Governmental classification on the basis of gender violates the Equal Protection Clause unless they are substantially related to important governmental objectives.”

Do No Harm said that it has found that 25 states have codified requirements based on characteristics like gender or race.

“Assuming that candidates bring diverse perspectives based on nothing other than their gender or race, treats individuals as faceless members of a group based on their immutable characteristics,” said Pacific Legal Foundation attorney Caleb Trotter, which is representing Do No Harm.


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