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Montana DPHHS issues rule saying surgery cannot change a person's sex

Montana birth certificate law affecting transgender citizens
Posted at 9:06 PM, May 23, 2022
and last updated 2022-05-24 15:11:05-04

HELENA — The Montana Department of Public Health and Human Services issued an emergency rule Monday that eliminated any path for transgender Montanans to change the sex on their birth certificates.

The rule, which took immediate effect, is another development in an ongoing legal battle between the state and two transgender Montanans, who are represented by the ACLU of Montana. The lawsuit is over the constitutionality of a 2021 state law, which required transgender Montanans to get surgery and a court order to change the sex designation on their birth certificate. In April, a district judge ordered a preliminary injunction, which prevented the state health department from enforcing the law while the case was fought in court.

About a week ago, the ACLU threatened to take legal action against the state for not complying with the court order. In the ACLU's May 17 statement, it said the judge's order told the state to return to a process created by a 2017 rule, which allowed transgender people to get an updated birth certificate after submitting an affidavit and a gender designation form.

However, in the state health department's notice of adoption of temporary emergency rule, the court's order wasn't clear and left the state in an "ambiguous and uncertain situation." Because the 2021 law required DPHHS to get rid of the 2017 rules the process the court ordered it to return to is "nonexistent," the state said. The state also denied the court issued a mandatory order to return to the 2017 process.

The state health department justified the emergency rule because of the "perception" the state's Office of Vital Statistics "should be accepting birth certificate sex designation amendment applications," according to the notice.

The state health department said it considered another part of the court's order, which said "that 'no surgery changes a person's sex' but that surgery 'aligns a person's body and lived in experience with the person's gender identity,'" according to the emergency rule.

The state health department said it concluded the 2021 law's premise "that an individual's sex could be changed through surgery — was mistaken."

"Accordingly, this emergency rule does not authorize the amendment of the sex identified/cited on a birth certificate based on gender transition, gender identity, or change of gender," according to the emergency rule issued by the state health department.

Read the full text on the emergency rule.

In the new emergency rule, people who's sex was misidentified at birth, they can get a corrected birth certificate with proper documentation of DNA or genetic testing. The rule also established a process to correct a birth certificate for people who's gender was recorded wrong, such as through a data entry error.

Neither the state health department nor the ACLU of Montana responded immediately to requests for comment.

Yellowstone County District Court Judge Michael G. Moses order granting the preliminary injunction said, "transgender people who are denied accurate birth certificates are deprived of significant control over" how they disclose their transgender identity. A mismatch between a person's gender identity and the information on their birth certificate also subjects transgender people to discrimination and harassment at work, at the doctor's office and in interactions with government officials, the order said.

"A mismatch between someone's gender identity and the information on their birth certificate may even subject them to violence," according to the order.

“The fact that the state refused to revert to the previous processes,” the ACLU said in its statement last week. “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 2021 law requiring surgery and court proceedings to change a person’s sex on their birth certificate was created by Senate Bill 280. The bill passed the 2021 Montana Legislature by three votes in the Senate and eight in the House. All “yes” votes came from Republican lawmakers. Gov. Greg Gianforte signed the bill into law in April 2021.