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Montana restricts birth certificate changes for transgender people

The rule puts Montana among the strictest states in the U.S. effectively bars trans people from changing the sex on their birth certificates

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By Mara Silvers | Montana’s public health department said Friday it would adopt a new administrative rule that bars state residents from changing the sex on their birth certificates except in narrow circumstances. The now-final rule makes it nearly impossible for transgender Montanans to update the document to align with their gender identity.

The department’s change comes despite a judge’s preliminary injunction in April blocking a related law restricting birth certificate changes. That law, Senate Bill 280, would have required proof of surgery and a court order before a person could change the listed sex on their birth certificate, a less restrictive threshold than the new rule. 

As written, the new policy says the sex listed on a person’s birth certificate may only be corrected if it was the “result of a scrivener’s error or a data entry error,” or if a person’s listed sex was proven to be incorrect by “chromosomal, molecular, karyotypic, DNA, or genetic testing.” 

The policy doesn’t allow a birth certificate change based on self-reported gender identity, alignment with other official documents or after gender-affirming surgeries. It makes Montana one of the most restrictive states in the country for trans people who want to change their birth certificates.

The department’s new policy says the changes reflect its belief that sex, unlike a person’s gender identity, is a “biological concept” that cannot be changed. Additionally, the health department said the rule filled a “regulatory gap” created by Judge Michael Moses’ temporary injunction of SB 280, and also met the department’s obligation to maintain accurate vital records.

In a statement responding to the Friday announcement, the Montana Human Rights Network called the policy a “deeply disturbing” move by the administration of Gov. Greg Gianforte.

“They have gone against the advice of physical and mental health experts, teachers, parents and affected community members,” said Shawn Reagor, Director of Equality and Economic Justice at MHRN. “Montanans made their will clear in the public comment process, and the justification the Gianforte administration has given for flying in the face of that will can most generously be described as gaslighting and misleading.” 

In a statement Friday about the new birth certificate rule, Gianforte press secretary Brooke Stroyke said the state “has an obligation to ensure the accuracy of vital records like birth certificates. This rule accomplishes that, and is consistent with law and science.”

The decision to adopt the new rule is nearly identical to the emergency rule the department enacted in May following the court’s injunction. That measure was forcefully criticized by transgender, nonbinary and two-spirit Montanans, as well as family members, supporters of LGBTQ+ civil rights, Democratic lawmakers and public health advocates. 

In a June Zoom call with over a hundred attendees, dozens of opponents testified that the rule would negatively impact the health and wellbeing of trans people by forcing them to keep birth certificates that are incongruent with their gender identity and presentation. Opponents further said the rule could negatively impact trans peoples’ mental health and increase risks of suicidality among an already marginalized community. Only one person testified in favor of the proposal.

The department on Friday addressed the comments raised in public testimony, as state law requires, but largely dismissed opponents’ concerns as lacking evidence or being unconvincing. 

“These comments allege that the rule will lead to increased rates of suicide within the transgender community. The department does not believe that there is scientific evidence — and commenters presented no such evidence — that the failure of birth certificates to reflect transgender individuals’ gender identity leads to an increase in suicide in the transgender community,” said the department’s response, signed by the Director of Public Health and Human Services Charlie Brereton.

Dr. Lauren Wilson, vice president of Montana’s chapter for the American Academy of Pediatrics, said in a statement Friday that the department’s decision was “extremely disappointing” and disregarded available research on the importance of affirming policies for transgender people.

“There is ample and strong evidence that the ability to socially transition (which involves living fully in their gender, and having matching documentation at school and work) improves mental health outcomes for transgender individuals,” Wilson said. “Allowing transgender people to update their documentation has been shown to be beneficial to their well-being and safety, and doesn’t hurt anyone else.”

Other commenters in June, including former DPHHS administrator Zoe Barnard, took issue with the legality of the rule and argued it didn’t meet the standard of being “reasonably necessary.” In her testimony, Barnard also said the department’s goal of maintaining its vital records system could have been achieved in other ways. The department, responding to Barnard’s comment, faulted her for failing “to identify what such options are.” 

In a Friday interview, Barnard said the department was shirking its responsibility to explain the reason for its rulemaking. 

“The agency shouldn’t shift [its] responsibility to the public,” Barnard said. “They are being willfully blind to the bulk of evidence which is a poor basis for sound public policy.”

The new rule will go into effect despite the ongoing legal battle over SB 280. Attorneys with the ACLU of Montana, which is representing the transgender plaintiffs in that case, said they will be back in court next Thursday in a hearing to clarify the judge’s preliminary injunction from April.

Akilah Lane, one of the plaintiff’s attorneys, said Friday that the new rule appeared to violate the judge’s order as the emergency rule did before. 

“It’s in direct contravention,” she said. “This action is just further evidence of the state’s noncompliance with the preliminary injunction.”

Stroyke, with the governor’s office, did not respond to an additional request to comment on Lane’s statement that the state was in violation of the judge’s April order.

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Mara Silvers writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.

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The preceding piece was previously published by Montana Free Press and is republished with permission.

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Montana

Montana state court blocks anti-Trans birth certificate law

“The needless barrier to accurate documentation for transgender people enacted by the Montana legislature is unconstitutional”

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ACLU of Montana

A state district court granted a preliminary injunction in Marquez v. State of Montana Thursday, holding that a law passed by the 2021 Montana Legislature likely violates the constitutional rights of transgender Montanans.

The ACLU of Montana, the ACLU’s national office, and Nixon Peabody, LLP challenged Senate bill SB 280 on behalf of two transgender plaintiffs who seek to change the gender marker on their birth certificates.

“Today is a huge win for all Montanans as we strive towards a more equal community,” said Amelia Marquez. “Our constitution provides the means to protect the most vulnerable Montanans, and I am thankful for those who continue to advocate for gender diverse Montanans and our rights.”  

“We are thrilled that the Court recognized the substantial and unnecessary burdens this law places upon transgender individuals in violation of their constitutional rights,” said Akilah Lane, staff attorney at the ACLU of Montana. “The Court’s injunction affirms the basis of our case: that SB 280 intentionally targets transgender people for unequal treatment because, as Judge Moses wrote, ‘only transgender individuals are subjected to these procedures and burdens in order to have a birth certificate that accurately reflects their gender.’” 

“This ruling is an important step forward for our clients and for others affected by the unconstitutional law,” said Seth A. Horvath, a partner with Nixon Peabody’s Complex Disputes practice. “There are limits on legislative authority, and today the court prudently enforced those limits.” 

“The needless barrier to accurate documentation for transgender people enacted by the Montana legislature is unconstitutional,” said Jon Davidson, senior staff attorney at the ACLU LGBTQ & HIV Rights Project. “It was rightfully enjoined today.  This law serves no valid purpose other than to hurt transgender people like our clients Amelia Marquez and John Doe.  We’ll continue to fight this unconstitutional effort to harm transgender Montanans.” 

In this case, the ACLU of Montana, the ACLU, and Nixon Peabody are representing Amelia Marquez, a transgender woman, and John Doe, a transgender man, in their lawsuit challenging a law that makes it virtually impossible to correct the sex designation on their birth certificates. Marquez and Doe’s case asserts that Senate Bill 280 (passed by the 2021 Montana Legislature) violates their constitutional rights to privacy, equal protection of the law, and due process. 

SB 280 requires a transgender person to obtain a certified copy of an order from a court indicating that the sex of the person has been changed by “surgical procedure.” The court order must then be provided to the Department of Public Health and Human Services (DPHHS). For many transgender Montanans, surgical procedures are either unwanted, medically contra-indicated, or cost-prohibitive.  

In granting a preliminary injunction, the court found that, “Plaintiffs provided unrebutted evidence describing that neither gender-affirming surgery nor any other medical treatment that a transgender person undergoes changes that person’s sex. Instead, gender-affirming surgery aligns a person’s body and lived in experience with the person’s gender identity, which already exists.” 

Before the passage of SB 280, transgender Montanans needed only to provide an affidavit to DPHHS to change the gender marker on a birth certificate. This process was efficient and easy and was administered without problem for years until the legislature decided to act.    

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