Montana legally erases trans people with sinister birth certificate ban

Activists hold a trans Pride flag

Montana has legally erased trans people by banning birth certificate changes in the latest attack against the community.

The western US state ignored a court order that blocked the GOP-controlled legislature from restricting even further the rights of trans people.

The Montana Department of Public Health and Human Services said in an emergency order Monday (23 May) that birth certificates will now solely list “sex” and no longer record a person’s “gender”.

Even if a trans Montanan has undergone gender-affirming surgery, they will legally be unable to change the sex marker on their birth certificate. This is, the order says, because sex is “immutable” while gender is a “social concept”.

“Sex is different from gender and is an immutable genetic fact, which is not changeable, even by surgery,” the order by department director Adam Meier says.

“Accordingly, this emergency rule does not authorise the amendment of the sex-identified/cited on a birth certificate based on gender transition, gender identity or change of gender.”

The only instance in which a sex marker can be changed on a birth certificate is if it was incorrectly listed when issued or if a person’s sex was “misidentified” at birth, Meier adds. The order went into effect immediately.

Montana ‘makes it even harder for trans people to live’ with birth certificate ban 

The directive means that trans Montanans may struggle to access certain services, such as social security, or apply for other identification documents, such as passports or driver’s licences, because of their inaccurate birth certificates.

The agency’s move goes in the face of a Billings district court judge who in April blocked Senate Bill 280, a 2021 law requiring a “surgical procedure” and a court order to change the sex listed on a birth certificate.

It was swiftly signed into law by Republican governor Greg Gianforte. He has previously signed laws banning trans athletes and allowing religion to be used to “attack” LGBTQ+ people.

Two trans Montanans sued the state in response last year, arguing the bill violated their state constitutional rights to privacy and equal protection. Not all trans folk undergo surgery either, they added.

Judge Michael Moses ruled that the bill does interfere with a person’s right to privacy by making trans people disclose private details.

Greg Gianforte at a fundraiser

Montana Republican governor Greg Gianforte signed the anti-trans bill in 2021. (William Campbell-Corbis via Getty Images)

“Only transgender individuals are subjected to these procedures and burdens in order to have a birth certificate that accurately reflects their gender,” he wrote in his decision.

But Moses’ order left the department without a “regulatory mechanism” to process birth certificate changes, the order claimed. A 2017 policy that allowed trans applicants to update their birth certificates without surgery or through the courts had been binned because of the bill.

Emergency orders can only be issued when a situation poses “an existing imminent peril to the public health, safety, or welfare that cannot be averted or remedied by any other administrative act”, the Montana Administrative Procedure Act says.

Democratic lawmakers, health experts and LGBTQ+ campaigners, unconvinced that the order was at all needed, condemned the department.

“While this rule is intended to make the lives of our transgender neighbours harder, it impacts all of us by eroding the rights that let us live our lives free from government overreach,” House minority leader Kim Abbott and Senate minority leader Jill Cohenour said in a Tuesday statement.

“As someone who cares for transgender patients, I don’t understand why our state government is spending so much time, energy and money trying to prevent them from having accurate documentation,” Lauren Wilson, vice president of the Montana Chapter of the American Academy of Pediatrics, told the Montana Press.

“This rule is unfairly singling them out and making it even harder for them to live a public life in Montana.”

ACLU of Montana decried the health department for so openly rebelling against the court.

“The State is willfully refusing to comply, and in doing so is showing their true colours – these laws and regulations are about harming transgender Montanans,” a Tuesday statement said.

“We intend to take this up in court.”