Montana has permanently blocked transgender people from changing their gender on their birth certificates

On Friday, Montana health officials made permanent a regulation prohibiting transgender individuals from amending their birth certificates, even if they have gender-confirmation surgery.

The decision by the administration of Republican Governor Greg Gianforte comes just days before a court will hear arguments regarding the legitimacy of a similar emergency order that has been in effect since May. The ACLU of Montana has requested that state Judge Michael Moses vacate the emergency rule.

In April, Moses temporarily halted the implementation of a 2021 Montana legislation that made it harder for transgender persons to update their birth certificates.

Before changing the sex listed on their birth certificate, the law required individuals to undergo a “surgical treatment.” In addition, Gianforte’s administration denied modifications to birth certificates even after surgery.

In various states, conservative legislators have pushed to restrict the rights of transgender individuals during the past several years.

Advocates for transgender rights assert that only Tennessee, Oklahoma, and West Virginia have similarly broad limitations against birth certificate alterations. In 2020, Idaho and Ohio repealed their respective bans.

Transgender plaintiffs represented by the ACLU of Montana have stated that a birth certificate that does not match their gender identification puts them at danger of humiliation, discrimination, harassment, or assault if requested to submit it.

Friday’s rule, according to ACLU attorney Akilah Lane, is “more proof of the state’s noncompliance” with Moses’ April order. The judge will hear the case during a hearing on Thursday in Billings.

Prior to the new law, transgender Montanans wishing to amend their birth certificate were simply required to submit an affidavit to the state health department.

Under the new rule, the state Department of Public Health and Human Services stated that it would no longer record the category of “gender” on birth certificates, replacing it with a listing for “sex” — either male or female — that is rarely subject to modification.

According to the norm, sex is “unchangeable,” whereas gender is a “social construct” that can evolve through time.

Moses asserted that the statute established by the legislature of 2021 was unconstitutionally ambiguous because it did not identify the requisite surgical procedures.

A few weeks later, state health officials stated that the court’s judgment placed them in “an ambiguous and confusing scenario” and made the rule amendments to clarify when a birth certificate’s sex designation might be modified.

The new law stipulates that the sex on birth certificates can only be changed if the sex is misidentified at birth or if the sex was incorrectly recorded due to “a scrivener’s error.”

Democratic state legislators described the administration’s attempt to defy Moses’ injunction as a “blatant power grab” and accused it of attempting to undermine the judiciary.