Montana’s Department of Public Health and Human Services (DPHHS) has once again banned transgender people from updating the gender on their birth certificates.
In a press release, DPHHS said that “the sex of a registrant on a birth certificate may only be corrected if the sex of an individual was listed incorrectly on the original certificate as a result of a scrivener’s error or a data entry error, or if the sex of the individual was misidentified on the original certificate,” adding that in either case “the department must receive a correction affidavit and supporting documents consistent with the law.”
The rule, announced Tuesday, is identical to one that was struck down by a district court judge in 2022.
The DPHHS adopted the original rule in September 2022, five months after a state judge blocked Senate Bill 280, a 2021 state law requiring Montana residents to undergo a “surgical procedure” before they could change the gender listed on their birth certificates. District Court Judge Michael Moses struck down the rule later that same month, blasting the department for what he described as a direct violation of his April 2022 order blocking SB 280.
Last June, Moses struck down the 2021 law, ruling that it violated both the state and federal constitutions and holding the state in contempt for its refusal to comply with his April 2022 temporary injunction against it.
But as the Montana Free Press notes, with SB 280 permanently blocked, DPHHS is once again free to implement administrative rules around changing birth certificates.
In its Tuesday statement, DPHHS said that implementation of the 2022 rule also “aligns with the requirements of SB 458.” Signed by Montana Gov. Greg Gianforte (R) in May, SB 458 legally defines “sex” as either male or female and defines those terms according to biology. Critics say the law legally erases trans and nonbinary identities.
“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” DPHHS Director Charlie Brereton said.
Alex Rate, legal director of the ACLU of Montana, which brought the lawsuit challenging SB 280, told the Montana Free Press that DPHHS’s implementation of the 2022 rule was grounds for another legal challenge.
“We’ll be back in court, no doubt,” Rate said. “The new rule runs afoul of the same constitutional provisions, from dignity to privacy to equal protection.”
Rate added that “this latest action by the [health department] betrays the state’s deep and abiding animus towards trans people in Montana.”
