HELENA — On Thursday, April 21, 2022, State District Court Judge Michael Moses temporarily blocked a new Montana law that requires transgender citizens to get surgery and a court order before they can change the sex on their birth certificate.
In his decision, Moses said the law interferes with a person’s right to privacy and right to be free from the state meddling in a person’s medical treatment.
“To obtain a court order, plaintiffs must publicly disclose confidential, intimate details of their medical treatment,” Moses wrote. “Only transgender individuals are subjected to these procedures and burdens in order to have a birth certificate that accurately reflects their gender.”
The suit was filed in state District Court in Billings by two transgender Montanans with the help of ACLU-Montana, saying the law violated Montana’s constitutional right to privacy. The suit also said the law violates equal-protection rights, because it forces transgender citizens to undergo “burdensome procedures” that other citizens do not, and serves no legitimate purpose for the state.
"Today is a huge win for all Montanans as we strive towards a more equal community,” said plaintiff Amelia Marquez of Billings. “Our constitution provides the means to protect the most vulnerable Montanans, and I am thankful for those who continue to advocate for gender diverse Montanans and our rights.”
Senate Bill 280 was passed by the 2021 Montana Legislature and signed into law by Governor Greg Gianforte. The bill passed by fairly close margins – 26-23 in the Senate and 54-46 in the House – with all “yes” votes coming from Republican lawmakers.
Both the Governor’s Office and the Montana Department of Public Health and Human Services are defendant’s in the case. Neither office responded immediately to a request for comment.
The law repealed a rule put in place by Democratic Gov. Steve Bullock’s administration in 2017, allowing transgender citizens to change their birth-certificate sex with a signed statement and some minimal documentation.
Editor's Note: This is a developing story and will be updated with additional information as it becomes available.
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Here is the full of Senate Bill 280:
AN ACT REVISING VITAL STATISTICS LAWS REGARDING THE AMENDMENT OF BIRTH CERTIFICATE SEX DESIGNATIONS AND THE ISSUANCE OF REPLACEMENT BIRTH CERTIFICATES; PROVIDING THAT THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES MAY AMEND A BIRTH CERTIFICATE SEX DESIGNATION ONLY ON RECEIPT OF A COURT ORDER INDICATING THAT THE SEX OF A PERSON HAS BEEN CHANGED BY SURGICAL PROCEDURE; DIRECTING THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TO AMEND ADMINISTRATIVE RULES IN CONFORMITY WITH THIS ACT; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
WHEREAS, in December 2017, the Department of Public Health and Human Services (DPHHS) adopted MAR Notice No. 37-807, which amended ARM 37.8.102 and 37.8.311 to allow an individual to correct the gender designation on the individual's birth certificate by providing to DPHHS a correction affidavit accompanied by: (1) a completed gender designation form certifying that the individual has undergone gender transition or has an intersex condition; (2) a government-issued identification displaying the correct gender designation; or (3) a certified copy of a court order indicating that the gender of the individual born in Montana has been changed; and
WHEREAS, prior to the adoption of MAR Notice No. 37-807, the sex designation on a birth certificate could only be amended if DPHHS received a certified copy of an order from a court indicating that the sex of an individual born in Montana had been changed by surgical procedure; and
WHEREAS, accurate vital statistics play an important role in society, and the rulemaking adopted in MAR Notice No. 37-807 should have been contemplated in the Legislature rather than through DPHHS rulemaking; and
WHEREAS, the Legislature intends to repeal the rulemaking adopted in MAR Notice No. 37-807 and enact into law the substance of the administrative rule existing prior to the adoption of MAR Notice No. 37-807.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Sex change designation on birth certificate. (1) The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed by surgical procedure.
(2) The order must contain sufficient information for the department to locate the original birth certificate. If the person's name is to be changed, the order must indicate the person's full name as it appears on the original birth certificate and the full name to which it is to be amended.
(3) If the order directs the issuance of a new birth certificate that does not show amendments, the new birth certificate may not indicate on its face that it was amended.
(4) This section does not apply if the sex of a person was designated incorrectly on the original birth certificate due to a data entry error.
Section 2. Direction to department of public health and human services. The department of public health and human services shall amend ARM 37.8.102 and 37.8.311 in conformity with this act.
Section 3. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 50, chapter 15, part 2, and the provisions of Title 50, chapter 15, part 2, apply to [section 1].
Section 4. Effective date -- applicability. [This act] is effective on passage and approval and applies to amendments to sex designations in birth certificates that are received by the department of public health and human services on or after [the effective date of this act].