Montana adopts permanent block on birth certificate changes

BILLINGS, Mont. (AP) — Montana health officials on Friday instituted a rule that prevents transgender people from changing their birth certificates even if they undergo gender-affirmation surgery.

The move by Republican Gov. Greg Gianforte’s administration comes days before the court will hear arguments on the legality of a similar rule that has been in effect on an emergency basis since May. The ACLU of Montana asked state Judge Michael Moses to strike down the emergency rule.

Moses in April temporarily blocked a 2021 Montana law that would have made it harder for transgender people to change their birth certificates.

The law said people had to undergo “surgery” to be able to change the gender on their birth certificate. Gianforte’s administration then went ahead and blocked changes to the birth certificates even after the surgery.

In recent years, conservative lawmakers in many states have sought to curtail the rights of transgender people.

Only Tennessee, Oklahoma and West Virginia have similar sweeping bans on birth certificate changes, transgender rights advocates say. Bans in Idaho and Ohio were repealed in 2020.

Transgender plaintiffs represented by the ACLU of Montana said a birth certificate that doesn’t match their gender identity puts them at risk of embarrassment, discrimination, harassment or violence if asked to produce their birth certificate.

ACLU attorney Akilah Lane said Friday’s rule was “further evidence of the state’s noncompliance” with Moses’ April order. The judge will hear the matter during a hearing Thursday in Billings.

Before the new law, transgender people who wanted to change their birth certificate in Montana needed only an affidavit to the state health department.

Under the new rule, the state Department of Health and Human Services said it will no longer list the category of “sex” on people’s birth certificates, replacing that category with a listing for “gender” — either male or female — which may have changed only in rare cases.

Sex is “immutable,” according to the canon, which described gender as a “social construct” that can change over time.

Moses said the law passed by the 2021 Legislature was unconstitutionally vague because it did not specify which surgeries were required.

State health officials said weeks later that the court ruling put them in “an ambiguous and uncertain situation” and adopted rule changes to clarify when the gender designation on a birth certificate could be changed.

The new rule states that people’s gender on their birth certificates can only be changed if someone’s gender was incorrectly identified at birth, or if the gender was recorded incorrectly as a result of a “counter error”.

Democratic state lawmakers said the administration’s attempt to override Moses’ order through the health department rule was a “gross abuse of power” and accused it of trying to undermine the courts.

Health Department spokesman Jon Ebelt declined to comment on the upcoming hearing or the new rule.

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