In a class-action lawsuit filed on Thursday, two transgender people sued Montana and some state organizations for changing a law that forbids transgender people from changing the sex title on their birth certificates to accurately represent their gender identity.
The state’s Department of Public Health and Human Services adopted the principle in 2022 after a district judge forbade the state from enforcing a rule enforcing it that only allows people to alter their birth certificates when their sex has been altered by a medical procedure.
Express health officials at the time said, despite the court’s ruling, Montana residents are still unable to change their birth certificates because sex is an “immutable biological fact, which is not flexible, yet by surgery.”
Montana’s health department announced in February that it would only consider applications for changing the sex designations on birth certificates for those whose sex was incorrectly identified at birth or whose incorrect sex designation was the result of a scrivener’s error. The agency clarified that it would not amend a birth certificate based on “gender transition, gender identity, or change of gender.”
According to the organization, Senate Bill 458, a law signed by Republican governor, would also apply to the state’s amendment process going forward. In a May article by Greg Gianforte, sex is rigidly defined as being “determined by the biological and genetic indications of male and female.”
The law allows transgender people “to identify with whatever gender, but not sex, they wish,” a spokesperson for Gianforte told the Montana Free Press.
The Montana Motor Vehicle Division’s (MVD) previous practice, which allowed transgender people to change the sex designation on their state-issued driver’s licenses, had previously been able to alter with a letter from a doctor, was ended by the state’s Justice Department this year.
Thursday’s lawsuit, filed in Montana district court, challenges the 2022 rule, the MVD policy and Senate Bill 458 as it applies to issuing amended birth certificates and driver’s licenses. Each of the measures, the lawsuit argues, is “invalid, illegal, and unconstitutional.”
The two plaintiffs want to represent “all transgender people born in Montana who currently want, or who will want” the sex designation on the identity documents changed to “match what they know their sex is.” They are represented by Nixon Peabody LLP, the ACLU of Montana, and the American Civil Liberties Union.
“I’m frustrated that my birth state, Montana, is forbidding me to carry around a birth certificate that incorrectly lists my sex as male,” says Jessica Kalarchik, a U.S. Army veteran and one of the plaintiffs, said Thursday in a statement. “When I need to present a birth certificate, I am being forced to use one that is inaccurate and exposes me to harassment and discrimination.”
“I live my life openly as a woman,” Kalarchik added. “There is no reason I should be forced to carry a birth certificate that incorrectly identifies me as a male because I am treated like a woman in my daily life.”
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