Judge hears arguments on transgender birth certificate law

HELENA — Attorneys representing two transgender clients and the state of Montana presented arguments Wednesday to a district court judge about the future of a new state law adding significant hurdles for people who wish to change the gender on their birth certificate.

Lawyers from Attorney General Austin Knudsen’s office and the ACLU of Montana pushed for alternate paths forward on Senate Bill 280, asking the judge, respectively, to either dismiss the case entirely or block its enforcement while the case proceeds. 

The law currently in effect, which the Legislature passed earlier this year, requires a person who wants to change the gender on their birth certificate to undergo surgery and provide a court order in support of their request to the state Department of Public Health and Human Services. SB 280 revises a prior DPHHS rule that allowed a person to update their birth certificate by filling out a short form. 

The plaintiffs argued Wednesday that the law infringes on constitutional rights to privacy, due process and equal protection by requiring a person to have a surgery they may not want and forcing them to disclose personal medical information that is not relevant to their gender identity  to a judge. 

By implementing these barriers, lawyers for the plaintiffs said, the state puts transgender people at risk of discrimination and harassment that could arise when they present identification that identities them as transgender.

“Plaintiffs suffer the very real economical and psychological consequences and harms of having to live with discordant identity documents, including the fear of harassment and ridicule, and the pain that comes with knowing that the state of Montana refuses to accept the gender identity they know themselves to be,” said Akilah Lane, an attorney with the ACLU of Montana.

Katie Smithgall, the attorney arguing on behalf of the state, sought to convince the judge that the plaintiffs don’t have standing to bring their case, in part because their claims of harassment and discrimination are hypothetical and “fear alone is insufficient to establish standing.”

Smithgall also argued that the plaintiffs had not tried to change their birth certificates under the previous DPHHS rule, meaning alleged injuries from incongruous identity documents existed before SB 280 was signed into law. 

Attorneys for the plaintiffs disagreed, saying their clients have clear standing to challenge the law and suggesting that the state’s logic is circular.

“The state is arguing that our clients cannot challenge SB 280 unless they attempt to correct a birth certificate, but they can’t do so because of the statute itself,” said ACLU attorney Alex Rate.

The state also argued against what the plaintiffs portrayed as constitutional harms, saying transgender people are not part of a protected class under the Montana Human Rights Act and that there is no constitutional right to change one’s birth certificate. 

Smithgall also reiterated an argument made by state attorneys in prior legal briefs: that the state has an interest in maintaining the accuracy of vital records and “preventing fraud” via altered birth certificates. 

“In Montana, a birth certificate records a child’s sex — a biological (and genetic) fact — at birth,” the state wrote in an extensive August legal filing. “There is no right to change a vital public record to indicate a ‘sex’ that defies both history and genetic reality.”

ACLU attorneys on Wednesday doubled down on what they said is the bottom line for the plaintiffs.

“When we take a step back and really consider the issues in general terms, what we’re really looking at is the right of everyone to be free from unwarranted and unnecessary government intrusion,” Lane said.

Judge Michael Moses asked few questions during the Wednesday hearing. He instructed both parties to coordinate to schedule an acceptable date by which to submit their suggested rulings and accompanying briefs. Attorneys did not agree on a date before recessing.