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Montana DPHHS returns to rule limiting how people can change sex on birth certificates

Posted at 6:15 PM, Feb 21, 2024

HELENA — This week, the Montana Department of Public Health and Human Services announced it was once again instituting a policy that prohibits changing the sex marked on a person’s birth certificate in most cases – a policy that’s been the subject of legal challenges because of its effect on transgender Montanans.

DPHHS leaders said in a statement Tuesday that a state law passed last year required them to return to a 2022 rule that said the sex on a birth certificate can only be changed if it was originally misidentified, or listed incorrectly because of a clerical error.

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” director Charlie Brereton said in the statement. “This notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.”

When DPHHS originally instituted that rule, it drew opposition from advocates because it would prevent transgender people from making a change to bring their birth certificate in line with their gender identity.

“This is simply a desire on the part of normal everyday Montanans to have accurate identity documents,” said Alex Rate, deputy director of the ACLU of Montana. “And for whatever reason, the state has decided that they are going to deny that opportunity and that right.”

The ACLU was part of a 2021 lawsuit challenging an earlier state law, Senate Bill 280, which required transgender Montanans to get surgery and a court order before getting their birth certificates changed. During the legal action, District Court Judge Michael Moses of Billings issued a preliminary injunction and ordered the state not to enforce the law. During that period, DPHHS went through a rulemaking process and introduced the 2022 policy that further limited birth certificate changes.

Last year, Moses issued a summary judgment in favor of the plaintiffs.

During the 2023 legislative session, lawmakers approved and Gov. Greg Gianforte signed Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila. That bill codified a definition of biological sex into state law based on reproductive systems – either male or female.

Supporters of SB 458 said they wanted to define sex as a fixed concept, separate from gender. Glimm cited the lawsuit over SB 280 as one of the reasons to provide formal definitions.

In their statement Tuesday, DPHHS said SB 458, along with the end of the preliminary injunction in the earlier lawsuit, required them to return to the earlier rule. They said they plan to use the 2022 rule when processing any requests for birth certificate changes that they received after or hadn’t resolved by Oct. 1, 2023, when SB 458 took effect.

The ACLU is leading one of two active lawsuits in Missoula County that are already challenging SB 458 on constitutional grounds. Rate said, after this announcement, there’s likely to be a new round of litigation.

“Many in the civil rights and social justice community have been concerned about the way that 458 would be implemented,” he said. “As of yesterday, we finally see the ways that state agencies are going to weaponize this new definition of sex in order to marginalize trans people in Montana.”

Rate said advocates will argue that the same rationale the court used in ruling against SB 280 last year should apply to this rule as well.

“We have a constitutional right to dignity, to equal protection, to privacy,” he said. “All of those rights were implicated in the original litigation, and the likelihood is that they will be implicated here as well.”