Montana adopts sketchy rule to stop trans people from changing their birth certificates

Montana’s Republican-led legislature passed this law, S.B. 280, in April 2021. Previous to the law, 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.

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.

But the state chapter of the ACLU says that Montana government officials have 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.