Two transgender people are suing the state of Montana over a new law that makes it harder to correct the gender marker on a person’s birth certificate.
“Denying me an accurate birth certificate places me at risk of embarrassment or even violence every time I am required to present my birth certificate, because it incorrectly identifies me as male,” said Amelia Marquez, one of the plaintiffs and a trans woman, in a statement.
The lawsuit, brought with help from the ACLU, concerns a law signed by Gov. Greg Gianforte (R) this past May, which requires proof of bottom surgery in order to get the gender marker on a birth certificate changed.
This requirement makes it difficult – if not impossible – for many trans people to get a corrected birth certificate because such surgery is too expensive for many people, not all trans people want or need gender affirming genital surgery, and many are not good candidates for it for medical reasons.
Even if they don’t have genital surgery, they argue that they shouldn’t be forced to effectively out themselves as transgender every time they need to present at birth certificate.
The plaintiffs’ complaint says that the Montana law violates transgender people’s rights to due process, equal protection, and privacy because it targets them for unfair treatment and requires them to share medical information with the state.
Marquez said that she cannot afford the surgery required by the law and said that it’s “painful and stigmatizing” that the state won’t recognize her as a woman because of it.
The other plaintiff is referred to as John Doe in court documents and he’s a transgender man. He said that he doesn’t want to have to present medical records in court about his genitals – which the ACLU called “public humiliation and degradation” – in order to get his paperwork corrected.
He said that he has gone through surgery in the past and he’s currently getting hormone therapy and counseling to help with his gender dysphoria, but he doesn’t want to get more surgery to get a corrected birth certificate.
The law was changed after Montana Sen. Carl Glimm (R) sponsored the bill claiming that “birth certificates are an item of fact.” He said that the Montana Department of Public Health and Human Services’s previous policy, which was to require an affidavit to correct a birth certificate, didn’t safeguard “important information.”
“When a person is born, you record where they’re born, you record their weight, you record their sex. And that’s important information to document,” he said.
A birth certificate is more than a historical document, though; it serves a legal function throughout a person’s life and can be modified after an adoption or an acknowledgement of paternity because both of those cases involve people’s rights and responsibilities, even if the facts change after a person’s birth.
A federal magistrate ruled that having an incorrect birth certificate can cause “irreparable injury and harm” for transgender people when striking down Idaho’s ban on trans people correcting their birth certificates.
Montana passed several other anti-LGBTQ laws this year, including a ban on transgender girls participating in school sports. The state also passed a law requiring schools to give 48-hours notice to parents if they are going to discuss LGBTQ people.