HELENA — A Billings woman and an anonymous Bozeman-born man are suing the state over a new law they say discriminates against transgender people who want to update the gender listed on their birth certificates. 

Amelia Marquez, 27, and John Doe, 22, filed their lawsuit in Yellowstone County District Court on Friday. Both are represented by the American Civil Liberties Union of Montana.

Amelia Marquez is a plaintiff in the lawsuit challenging Senate Bill 280. Credit: Courtesy of ACLU

The policy at issue, Senate Bill 280, was one of several passed during the recent legislative session that LGBTQ advocates strongly opposed because of the anticipated effect on transgender Montanans. 

The law requires that a person obtain gender-affirming surgery and a court order before changing the gender designation on a birth certificate. The new law reverses a 2017 Department of Public Health and Human Services policy. 

During the legislative session and in the complaint filed Friday, opponents said the policy will force transgender people to choose between pursuing an expensive major medical procedure or living with an identification document that incorrectly describes who they are.

“Gender-affirming surgery is not medically necessary or medically desirable for all transgender people,” the lawsuit said. “Like other major healthcare decisions, decisions about gender-affirming surgery are profoundly personal, require confidential medical evaluations and often involve intimate conversations with family members. In a free society, the state has no role to play in these deliberations.”

Before the passage of SB 280, DPHHS required a person wishing to change the gender on their birth certificate to submit a form to the department or provide a government-issued form of identification that displays their accurate sex designation. A person could also use a court order attesting to a change in gender. 

“[SB 280] reinstates an archaic understanding of transgender people and ignores modern medical treatment guidelines.”

ACLU of Montana Lawsuit

That policy, the lawsuit said, “functioned well for years without incident.” By reversing it, plaintiffs accused the state of imposing “a draconian medical requirement on transgender people that has no medical or other rational justification. [SB 280] reinstates an archaic understanding of transgender people and ignores modern medical treatment guidelines.” 

Spokespeople for Gov. Greg Gianforte and the Department of Public Health and Human Services declined to comment on pending litigation.

In June, DPHHS heard public comment on its draft rule to enforce the changes outlined in SB 280. The bill’s primary sponsor, Sen. Carl Glimm, R-Columbia Falls, was the sole proponent who spoke in favor of the rule. Multiple opponents, including several transgender Montanans, urged DPHHS to reverse course or draft a rule more lenient to transgender people.

In a statement responding to the lawsuit, Glimm defended the measures in the new law as a way to maintain statistical records, including information about the sex someone is assigned at birth.

“Birth certificates are important government documents recording key factual and statistical information when a baby is born, including biological sex. Biological sex has never been private information throughout the course of human history, despite the ACLU’s claims in this lawsuit. I agree with the plaintiffs that harassment or violence because of a person’s gender is wrong and unacceptable,” Glimm said. 

In the lawsuit, Marquez said living with an inaccurate gender listing on her birth certificates puts her at risk of harassment and violence from others who may discover she is transgender. 

The other plaintiff, John Doe, said he does not wish to pursue gender-affirming surgery at this point in his life. Given that Doe does not currently live in Montana, the suit said, SB 280 would also require him to take on significant financial costs of traveling to Montana to receive a court order to update his birth certificate.

“These burdensome procedures, to which only transgender people ar subject, serve no legitimate purpose,” the lawsuit stated. “They constitute a major step back from the procedure in place since December 2017, under which no order or surgery or intimate disclosure were required. The effort to revoke [the rule] evidences an intent to discriminate against transgender people.”

The lawsuit asks the court to declare the law unconstitutional and prohibit its enforcement. Judge Michael Moses has not yet scheduled a date for the parties to appear in court.

This story was updated July 16, 2021, to include full comment from Sen. Carl Glimm.

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Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.