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Court will hear arguments on transgender birth certificate challenge on Wednesday

Hearings to be held in Yellowstone County
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Posted at 9:48 AM, Dec 21, 2021
and last updated 2021-12-21 11:49:41-05

One of the Legislature’s most controversial bills will get a pair of hearings in Yellowstone County on Wednesday on the issue of whether residents can change the gender of their birth certificates without first undergoing some type of surgery.

At issue is Senate Bill 280, passed this year with a Republican dominated Legislature and signed by Gov. Greg Gianforte. The law put new restrictions on when residents can change a gender designation on birth certificates.

Previously, the law was largely silent on the act and allowed for the gender to be changed without judicial approval. With SB280, a judge must approve the change and the person must submit documents showing a surgical procedure.

Opponents of the measure, including Amelia Marquez, a transgender woman who previously ran for the Legislature, said the new law violates the state constitutional right to privacy, equal protection and due process. Marquez is being represented by the American Civil Liberties Union.

The hearing, scheduled for 2:30 p.m. Wednesday, will be before Judge Michael Moses, who will split – or bifurcate – the oral arguments into two different hearings. The first will be oral arguments on the State of Montana’s motion to dismiss the case. And secondly, Moses will hear a motion for preliminary injunction, which would halt the birth certificate bill until the resolution of the case.

Dismissing the case

The Montana Attorney General’s Office argues that the case should be dismissed. Originally, it said that because the case was also being simultaneously taken up by the Montana Human Rights Bureau that the district court should dismiss it, pending the outcome of that case.

However, last week, the HRB, tackling the same issue, demurred by saying the challenge struck directly at the heart of the state’s constitution and must be decided by the court.

Normally, two identical cases are not allowed to be going through two separate processes to avoid a conflict where one agency makes a ruling that is opposite of another. However, attorney Akilah Lane told the Daily Montanan that since the HRB process is no longer at issue, that no longer remains a concern.

Still, the Attorney General’s Office argues that since neither Marquez nor another plaintiff in the suit who is going by “John Doe” have attempted to change their birth certificates after the new law that the damages are merely hypothetical. Moreover, attorneys for the state said that both plaintiffs had the chance to change it before the law was changed, but declined to do so.

“Plaintiffs simply repeat that SB280 violates the equal-protection clause of the Montana Constitution. They claim that similarly situated individuals are not subject to the same requirements, but they do not identify any right that has been infringed,” the court filing said. “Plaintiffs seem to suggest that the constitutional right is the ‘inability to access identity document(s) accurately reflecting one’s true sex,’ but this is not a constitutional right.”

The state also argues that the new law applies to every resident equally. Its attorneys said that anyone wanting to change a birth certificate is subject to the same set of rules.

“Asserting an equal protection violation requires Plaintiffs to show that transgender individuals are a protected or suspect class. Under Montana law, it is unequivocally clear that they are not,” the attorney general argues.

The state also argued that it has an interest in limiting the ability of residents to change a birth certificate.

“Take prisons, for example,” the state’s response begins. “If a trans woman is incarcerated in a woman’s-only facility and assaults a fellow female inmate, and the trans woman’s birth certificate says ‘female,’ the state will not be able to move this individual to an all-male facility to protect the female inmates.”

The state also argues that residents are not constitutionally entitled to changing a birth certificate, and “Montana law does not recognize a broad right to make one’s own medical decisions.”

“The Legislature has allowed individuals to change their birth certificates for a variety of reasons, but this is an act of legislative grace, not a guaranteed right,” the attorney general argues.

Moving forward

However, attorneys representing Marquez said that the state can’t show a compelling interest in requiring this new process, which insists on proof of gender-affirming surgery.

“The act does not describe what evidence is sufficient to satisfy its requirements, nor does it describe the nature of the surgery required to comply with the act,” the court brief said. “The act invades the privacy of transgender Montanans. An individual’s gender identity and medical treatment are intensely personal and private.”

They raise concerns that medical records must be turned over to a judge before a birth certificate is changed.

“Not all transgender people are able to undergo the gender-affirming surgery the act compels,” the court filing said. “For some, the surgery is not medically necessary, while for others it is medically contraindicated. Others do not have health insurance coverage for, or cannot otherwise afford the cost of the surgery. Others cannot take off time from work for the surgery.

“The act was created to marginalize transgender people.”

The attorneys argue the increased processes implemented by the bill are burdensome for residents. Now, ACLU attorneys argue, transgender individuals in the state must not only shoulder the cost of a surgical procedure, but then must also hire an attorney and go before a judge to complete the process.

“The act contains no exceptions for medical contraindications or inability to pay the cost of the mandated procedures,” the filing said. “The Legislature failed to offer any legitimate public purpose for the act and none exists. The act was passed to express antipathy toward and to harm transgender people.”