Montana has issued a temporary emergency rule that bans changing the sex marker on birth certificates even if a transgender person has undergone a surgical procedure to align their body to their gender identity.
Owing to a pending legal action against the state, officials from the state’s Department of Public Health and Human Services (DPHHS) have said the department is unable to process applications to amend birth certificates while the case is pending.
DPHHS officials said the emergency rule was necessary because sex and gender are different and birth certificates are vital records they need to maintain accurately.
The department is charged with recording the sex of a child at birth, which is able to be determined by observations and tests, and not gender, which cannot be observed at birth because it is a “social ... construct.”
“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.”
In 2007 changes to the law meant it was permitted to amend the sex marker on a birth certificate if the person had undergone surgery.
However, in 2017, the department amended the rule again, “apparently purporting to change” the sex data element on birth certificates to a gender data element, officials wrote.
But in 2021, the Montana Legislature passed Senate Bill 280, which was signed into law on April 30, 2021, essentially repealing the 2017 rule and restoring the 2007 rule, which was then adopted into the Montana Code.
That piece of legislation then became entangled in a legal challenge about its constitutionality, in which the court ruled in favor of the plaintiffs to grant a preliminary injunction.
But that ruling has meant the department cannot process applications to change birth certificates, according to DPHHS Director Adam Meier.
“The court’s decision leaves this department in an ambiguous and uncertain situation,” he wrote. “The court’s preliminary injunction means that, pending final resolution of the litigation, the department’s Office of Vital Records (OVR) cannot accept and process birth certificate sex designation amendment applications according to the procedures set forth in S.B. 280 and the department rules that implement S.B. 280.”
Because the court “did not issue a mandatory injunction directing the department to re-implement the 2017 rule,” there is currently “no non-enjoined regulatory mechanism by which the department can accept and process birth certificate sex identification amendment applications,” he said.
The only conditions under which a Montanan can currently change their birth certificate is if their sex was incorrectly assigned at birth.
DPHHS officials have urged the department to inform Montanans of their options in the meantime.
