Government regulatory boards are commonplace for countless professions throughout the country. Boards governing healthcare professions are among the most notable, as they’re tasked with protecting citizens’ health and safety.
All states and several U.S. territories established boards to regulate the practice of medicine. In Montana, medical practitioners are under the purview of the Montana Board of Medical Examiners. Legislatively created in 1889, today’s board requires 12 members—six medical doctors (five MDs and one DO) and one each of a podiatrist, nutritionist, physician assistant, and emergency care provider, as well as two at-large, non-medical practitioners. All must meet residency, licensing, experience, and legal requirements.
Other requirements, however, have nothing to do with medicine and everything to do with race and gender.
State law requires Montana’s governor to appoint all medical board members. In 1991, in pursuit of gender and racial balance, Montana legislators directed the governor to also “take positive action to attain” proportional representation on the basis of race and gender balance when making appointments to all boards, commissions, and councils in the state.
For more than three decades, governors have been forced to deny opportunities for some qualified Montanans to competently serve the public, based on no reason other than their race or gender. In fact, Montana’s governor presently faces the task of filling two MD board seats that opened in September 2023.
There is no shortage of qualified MDs in Montana who could serve on the board. This includes at least one member of Do No Harm, a diverse nonprofit organization of over 6,000 physicians, healthcare professionals, medical students, patients, and policymakers committed to ensuring equality in healthcare. Do No Harm has one Montanan member who satisfies all board membership criteria, except that she is a white woman. As a result, she would be excluded from serving because of her race and gender.
It’s wrong for the government to make assumptions about people’s experiences and qualifications based on arbitrary and offensive assumptions about race or gender. And it’s unconstitutional.
No governor should use an individual’s race or gender to determine who gets the opportunity to serve the public. Treating people according to immutable characteristics like race and gender violates the very notion of equality before the law. People should be treated as individuals, not as members of a group they did not choose.
Represented by Pacific Legal Foundation at no charge, Do No Harm is fighting back. Its federal lawsuit challenges the Montana public boards’ race and gender preferences as violating the Constitution’s guarantee of equal protection. Victory would ensure that all candidates can compete equally to serve on the medical board, regardless of race and gender.
Montana is not the only state that uses immutable characteristics to fill public board vacancies and limit opportunities for individuals to serve the public.
A report released by PLF, Public Service Denied, found instances in 25 states where such unconstitutional discrimination has been codified. Without action, the problem is likely to worsen. PLF is working to defeat discrimination on government boards and commissions in Montana and everywhere else the unconstitutional practice is allowed.
What’s At Stake?
- Montana cannot disqualify or disfavor individuals from public service because of their race or gender. Race and gender preferences are unjust, demeaning, and unconstitutional under the Fourteenth Amendment.
- The government should treat people as individuals, not as members of a group they did not choose. Doing otherwise unfairly discounts people’s experiences and qualifications based on arbitrary and offensive assumptions about race or gender.
