Montana health department says surgery cannot change a person’s sex: ‘sex is immutable’

The Montana Department of Public Health and Human Services (DPHHS) this week issued an emergency rule stating that transgender Montanans may not amend the sex designation on their birth certificates, even if they undergo gender-affirming surgery.

The emergency rule, issued Monday by state health department Director Adam Meier, is a direct challenge to a court order handed down in April that blocks the state from enforcing a law that limits how the department may alter sex designations on state-issued birth certificates. The American Civil Liberties Union (ACLU) of Montana, the ACLU Foundation LGBTQ & HIV Project and the law firm Nixon Peabody LLP challenged the measure in a lawsuit filed last year on behalf of two transgender Montanans.

On Monday, DPHHS said transgender residents may not legally alter their birth certificates even after receiving gender-affirming surgery because sex is “immutable” and gender is merely a social construct.

“Sex is different from gender and is an immutable genetic fact, which is not changeable, even by surgery,” the department’s rule, which is effective immediately, reads. “Accordingly, this emergency rule does not authorize the amendment of the sex identified/cited on a birth certificate based on gender transition, gender identity, or change of gender.”

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“The birth certificate generally records only facts that are known (or knowable) at the time of the person’s birth,” according to the rule. “Sex is one of those facts: A person’s sex can be determined – by observation, examination, or testing – at the time of birth. Gender/gender identity, as a social, psychological, and/or cultural construct, cannot.”

In April, a Montana judge ordered the state to halt its enforcement of Senate Bill 280, a law passed last year to restrict the way in which DPHHS may amend sex designations on state-issued birth certificates. Under the law, a resident’s sex designation may only be changed if DPHHS receives a court order indicating that “the sex of a person has been changed by surgical procedure.”

Yellowstone County District Court Judge Michael G. Moses wrote in the order that “transgender people who are denied accurate birth certificates are deprived of significant control over” how they disclose their identity. Inaccurate identity documents have also been linked to discrimination and harassment that can put the lives of transgender people at risk.

“A mismatch between someone’s gender identity and the information on their birth certificate may even subject them to violence,” Moses wrote in April. Nearly a third of transgender people who have presented an identity document with a name or gender marker inconsistent with their perceived gender report being harassed, discriminated against or assaulted, according to the 2015 U.S. Transgender Survey.

But on Monday, DPHHS argued that Moses’ decision had left the department “in an ambiguous and uncertain situation” because it had not mandated the department to re-implement a 2017 policy that had allowed transgender residents to change their birth certificates without proof of gender-affirming surgery. That policy had been eliminated by Senate Bill 280, meaning there is currently “no non-enjoined regulatory mechanism” to accept and process sex identification amendment applications, DPHHS said.

In a statement on Wednesday, the ACLU of Montana, ACLU Foundation LGBTQ & HIV Project and the law firm Nixon Peabody LLP said the state in refusing to comply with Moses’ order had shown its “true colors.”

“These laws and regulations are about harming transgender Montanans,” the statement reads. “We intend to take this up in Court.”

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