Story at a glance
- Montana’s Department of Public Health and Human Services (DPHHS) has adopted a rule that effectively prohibits transgender people with from changing the sex designation on their state-issued birth certificates.
- According to the new rule, a person’s sex on their birth certificate can be altered only if it was listed incorrectly “as a result of a scrivener’s error or a data entry error” or if the individual’s sex was “misidentified on the original certificate.”
- The rule took effect Saturday.
Montana health officials have adopted a proposed rule that prevents transgender people in most cases from changing their sex designation on state-issued birth certificates — even if they receive gender-affirming medical or surgical care.
The rule adopted Friday by the Montana Department of Public Health and Human Services (DPHHS) allows for the sex that is listed on an individual’s birth certificate to be altered only if it was listed incorrectly “as a result of a scrivener’s error or a data entry error” or if the individual’s sex was “misidentified on the original certificate.”
In the case of the latter, DPHHS must be in possession of a correction affidavit and supporting documentation including copies of chromosomal, DNA or genetic testing that “identify the sex of the individual” in order to make the change.
The rule went into effect on Saturday.
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A Montana judge in April blocked state officials from enforcing a 2021 law that allows DPHHS to amend an individual’s sex designation on their birth certificate only if the department receives a court order indicating that the person’s sex “has been changed by surgical procedure.”
District Court Judge Michael Moses wrote in the order that the law erects a discriminatory barrier for transgender people seeking to correct their birth certificates and deprives them of “significant control” over how they disclose their gender identity.
Moses added that the law was unconstitutionally vague because it did not specify which surgical procedures were required for a transgender person to be able to alter their birth certificate.
But in May, DPHHS issued an emergency rule stating that Montanans still cannot alter the sex listed on their original birth certificates because sex is an “immutable genetic fact, which is not changeable, even by surgery.”
“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,” the department wrote in May.
On Friday, DPHHS used the same reasoning to justify its adoption of a rule first proposed by the department in June.
“Birth certificates and other records of birth include the ‘sex’ of the child, not the child’s ‘gender’ or ‘gender identity,’” the department wrote in a notice that was signed by DPHHS Director Charles T. Brereton. “Science and medical knowledge recognize the difference between ‘sex,’ which is a biological concept (and a biological fact), and ‘gender,’ which is a psychological, cultural, and/or social construct.”
In four states — Montana, Oklahoma, Tennessee and West Virginia — individuals may not alter the gender marker or sex designation that is listed on their original state-issued birth certificate. Similar bans in Ohio and Idaho were struck down in 2020.
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