The state health department has enacted an emergency rule to restrict transgender Montanans from amending the gender marker on their birth certificates. The move clashes with a court order that blocks a new law aimed at regulating the process.
Two transgender Montanans sued the state last July over a new law that would require proof of gender-affirming surgery and a court appearance to amend a birth certificate.
The plaintiffs argue the law violates their state constitutional rights to privacy and equal protection, and that not every transgender person chooses surgery. Without an amended birth certificate, the plaintiffs say they’re more likely to be subject to discrimination and harassment.
In April, a Yellowstone County district court judge temporarily blocked the law while the lawsuit proceeds. The state has not appealed that decision.
On Monday, KTVH first reported the state health department issued an emergency rule that’s stricter than the law in question. It declares Montanans can only amend their birth certificates when there’s a data entry error, and that it’s not an option for people transitioning.
Akilah Lane is an attorney for ACLU of Montana, which is representing the two transgender plaintiffs in the original suit.
“We think that this new rule really explicitly shows the state’s true colors — that these laws and regulations are intended to harm transgender Montanans and that’s who was targeted.”
Lane said ACLU of Montana has heard from several Montanans over the past month who inquired about amending a birth certificate, but the department had not updated its process after the temporary block. ACLU of Montana has not said whether it will take action over the rule.
The judge who blocked the 2021 law wrote that the injunction is meant to prevent “further injury or irreparable harm by preserving the status quo.” The previous process for amending birth certificates was established in 2017 under former Gov. Steve Bullock, which allowed trans Montanans to update their birth certificates by submitting a form to the state health department.
The state health department’s new rule says the court order created an uncertain situation and that it did not explicitly order the department to revert back to the 2017 rule.
In a statement, state health department spokesperson Jon Ebelt said the rule “obeys the court's order, addresses a critical regulatory gap, and remains consistent with current law.”
