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On Friday, health officials in Montana adopted a proposed rule change about changing the identification of sex on state-issued birth certificates.
The birth certificates now exclude changes after gender confirmation surgeries.
The Montana Department of Public Health and Human Services made the rule change effective on Saturday.
The change makes it impossible for transgender persons to change the sex on their birth certificates.
Changes will only be allowed under very limited circumstances.
The new rule also states that the sex on a birth certificate can only be changed if it was listed incorrectly on the original certificate “as a result of a scrivener’s error or a data entry.”
Another exception to the rule is if “the sex of the individual was misidentified on the original certificate and the department receives a correction affidavit and support documents, … including a copy of the results of chromosomal, molecular, karyotypic, DNA, or genetic testing that identify the sex of the individual.”
Building up to the change
The decision from Republican Gov. Greg Gianforte’s administration comes days before a court hears arguments over the legality of a similar rule that has been in effect on an emergency basis since May.
The ACLU of Montana asked state Judge Michael Moses to strike down the emergency rule.
In April, Moses temporarily blocked a 2021 Montana law that made it difficult for transgender people to change their birth certificate.
The law required people to have a “surgical procedure” before changing the sex listed on their birth certificate.
Meanwhile, Gianforte’s administration then took things further, blocking changes to birth certificates even after surgery.
Reaction to the change
In the last couple of years, conservative legislators from numerous states have worked to limit the rights of transgender people.
According to advocates for transgender rights, Tennessee, Oklahoma, and West Virginia have similar sweeping prohibitions against birth certificate changes.
Meanwhile, bans in Idaho and Ohio were struck down in 2020.
Transgender plaintiffs represented by the ACLU of Montana said a birth certificate that doesn’t align with their gender identity puts them at risk of embarassment, discrimination, harassment, or violence if asked to proved a birth certificate.
ACLU attorney Akilah Lane said the rule on Friday was “further evidence of the state’s non-compliance” with Moses’ order in April.
The judge will hear the matter over a Thursday hearing in Billings.
The difference between the past and present changes
Before the new law, transgender people looking to change their birth certificate in Montana only needed to provide an affidavit to the state health department.
With the new rule, the state Department of Public Health and Human Services said it would no longer record the category of “gender” on birth certificates.
Instead, they would replace it with a listing for “sex,” which can only be changed in rare circumstances.
Moses said the law passed by the 2021 Legislature was unconstitutionally vague as it failed to specify what surgical procedures were required.
State health officials said the court decision put them in “an ambiguous and uncertain situation” weeks later.
It also adopted the rule changes to clarify when a sex designation could change on a birth certificate.
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