Montana Adopts Rule Barring Trans People From Changing Sex On Birth Certificate

Montana’s health department on Friday made permanent a policy change that prohibits transgender residents from changing the sex on their birth certificates, even if they undergo gender-affirming surgery.

The rule change, which went into effect Saturday, makes it so one’s sex can only be changed if it was incorrectly listed on their birth certificate in a clerical error, or if their sex was misidentified at birth. Both cases would require supporting documentation, and in some cases, genetic test results.

Gov. Greg Gianforte’s (R) administration had imposed a similar, albeit temporary emergency rule back in May that is currently being challenged in the courts. 

The health department has said that the policy change reflects its belief that sex is a “biological concept” that cannot be changed, unlike one’s gender, which it called “a social, psychological, and/or cultural construct.”

Residents had expressed concern that the rule change unfairly targets transgender individuals, that it will lead to increased rates of suicide, and that it conflicts with medical knowledge and science.

“I feel that my civil rights have already been unduly limited, and that the risk of discrimination and physical harm that I face in my life has been elevated,” one resident, who was stopped from changing their name and gender because of the emergency rule, told local station KTVH following a public hearing earlier this summer.

The health department had argued in a public forum that the purpose of one’s birth certificate is to record vital information, including sex at time of birth, and that it was not given evidence showing that “having inconsistent Montana-issued and federal issued ‘identification documents’ would present a problem for transgender persons.”

The department also said it has not received evidence supporting community members’ expressed concerns that the rule change could lead to a rise in suicides, though it acknowledged that suicides are higher in the transgender community in general.

The Montana Human Rights Network, a nonprofit that supports and advocates for marginalized people, called the department’s decision “deeply disturbing” in a statement to the Montana Free Press .

“They have gone against the advice of physical and mental health experts, teachers, parents and affected community members,” said Shawn Reagor, Director of Equality and Economic Justice at MHRN. “Montanans made their will clear in the public comment process, and the justification the Gianforte administration has given for flying in the face of that will can most generously be described as gaslighting and misleading.”

Gianforte last year signed a bill into law that would require residents to undergo a “surgical procedure” if they wanted to change the sex on their birth certificates. A judge back in April temporarily blocked that law from going into effect, however. One issue taken was that the surgical requirement was considered to be too vague.

Two plaintiffs who challenged the law argued the high cost of surgical procedures and said that not having their gender identity on their birth certificate puts them at risk of embarrassment, discrimination, harassment or violence if they are asked to present their certificate, The Associated Press reported.