Montana’s Department of Public Health and Human Services (DPHHS) has refused to comply with a state court order requiring the department to let transgender people change the gender marker on their birth certificates.
On Monday, the department issued an emergency order declaring that state birth certificates will now only list a person’s “immutable” sex. DPHHS’s order said that a person’s sex only changes in rare circumstances while gender is “a social… construct” that can change over time.
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The DPHHS’s order is just the latest move in a power struggle between the state and the court.
In December 2017, the DPHHS said that transgender residents could change the gender marker on their birth certificates if they were intersex, had undergone “a gender transition,” or had a certified court order indicating that their gender had been changed.
However, in April 2021, Montana’s Republican-led legislature passed S.B. 280. The law effectively repealed DPHHS’s 2017 rule and said that people could only change their gender by undergoing a non-specified “surgical procedure.”
In July 2021, two transgender state residents sued the state’s Gov. Greg Gianforte (R), DPHHS and its director, claiming that S.B. 280 had made it virtually impossible for them to change their birth certificates, thus violating their constitutional right to privacy and due process.
“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.
S.B. 280 also made it 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.
The state disagreed and said that S.B. 280 was necessary to maintain accurate birth records.
However, in April 2022, state Judge Michael Moses said that the law’s requirement of an unspecified surgical procedure made it impossible for anyone to follow. The judge then issued a temporary injunction against S.B. 280, essentially blocking it from going into effect.
Now nearly a year later, the state chapter of the ACLU says that the state government has done nothing to comply with the judge’s order. For instance, a gender change form that DPHHS removed from its website after S.B. 280 was passed still hasn’t returned to the website.
“The fact that the state refuses to revert to the previous processes evidences its lack of respect for the judiciary and utter disregard for the transgender Montanans who seek to have a birth certificate that accurately indicates what they know their sex to be,” the ACLU said in their statement. “If the state continues to violate the preliminary injunction, we will have no choice but to seek relief from the court.”
Montana passed several other anti-LGBTQ laws in 2021, 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.