Dozens of Montanans testified Thursday in opposition to the state health department’s new rule that effectively bars transgender people from updating the sex on their birth certificates.
The nearly three-hour remote video hearing, facilitated by legal staffers from the Department of Public Health and Human Services, was the first opportunity for the public to weigh in on the temporary emergency rule enacted in May.
At the time it was issued, the health department said the rule was a response to an April district court ruling blocking a different Republican-sponsored birth certificate law from taking effect. That policy, Senate Bill 280, would require a person to receive surgery and a court order before they could update the sex on their birth certificate. The Billings judge said the law could not be implemented while the case proceeded.
Lawmakers to DPHHS: birth certificate emergency rule is ‘anti-democratic and insulting to Montanans.’
Democrats on a state Legislature interim committee published a letter Thursday urging the Department of Public Health and Human Services to rescind an emergency rule it enacted this week that prevents transgender Montanans from updating the sex on their birth certificates, arguing that the process of creating the rule was “anti-democratic and insulting to Montanans.”
Instead of returning to the birth certificate policy that preceded SB 280, which only required applicants to fill out a short form in order to change their listed sex, the department implemented a new rule that makes the process nearly impossible for transgender people. Upon reflection and consideration of the judge’s order, the health department’s emergency rule said, sex “is a biological concept that is encoded in an individual’s DNA and, thus, is genetic and immutable,” meaning it cannot be changed, even with surgery.
The emergency rule says changes to sex can be made only if the applicant can provide evidence of a clerical error on their birth certificate or DNA testing that proves a discrepancy.
On Thursday, DPHHS’ legislative and regulatory affairs staffer Brenton Craggs said the department intends to make the new rule permanent.
“By law, the temporary emergency rule cannot remain in effect for a period of more than 120 days,” Craggs said, reading from a prepared statement. “The department is proposing this rulemaking to ensure our regulatory framework remains in place for changing the identification of sex on birth certificates following the expiration of the emergency rule.”
If it’s not extended, the temporary rule will expire in September.
Only one proponent spoke in favor of the measure at Thursday’s meeting.
“I am not for changing the birth certificate sex just because someone feels that they have that right to,” said Donna Elford. “It’s not science. It’s just not science.”
The cumulative response to the proposed policy on Thursday was overwhelmingly negative.
“I’m calling to urge you to oppose and stop this rule change from occurring,” said Annie Belcourt, a clinical psychologist and member of the Blackfeet, Chippewa, Mandan and Hidatsa tribes. “And as the parent of a trans child, I can tell you that it is quite simply devastating for our family and for my child to see our state actively try to attack my child and my child’s rights through what I see, really, as state-sponsored hate. And that has to stop. That’s unacceptable.”
Nearly a hundred transgender people, family members and supporters also spoke against the new rule, urging the department to return to the more lenient standard implemented in 2017.
Ryan Kellen Jean, a Florence resident and transgender person, was one of many people who stressed the importance of allowing trans people to update their identification documents to match their gender identity and presentation. With incongruent documents, Jean said, society becomes difficult to navigate.
“By making it more difficult for trans people to get through school, find jobs, rent, buy homes — by making them more likely to be ‘outed’ in unsafe spaces, we will see higher rates of violence against trans Montanans as well as higher rates of suicide,” he said. “People will die.”
Zoe Barnard, a former state employee who led the health department division dealing with substance use disorders and mental health, cast doubt on the department’s justification for the emergency rule, saying it is out-of-step with the department’s goals of reducing youth homelessness, sex trafficking, substance abuse and suicide.
“Because I know how this process works, I’m going to ask some specific questions that should be addressed in the final rule comments,” Barnard said. “LGBTQ youth are more than four times as likely to attempt suicide than their peers. This rule is inconsistent with DPHHS’ written goal of promoting suicide prevention in Montana. If the department disagrees, please say why.”
Health department staffers moderating the meeting said two hours had been allotted for public comment. At 11:00 a.m., the meeting was extended an additional 45 minutes to allow for all opponents on the call to list their name and town of residence.
Health department spokesperson Jon Ebelt did not respond before publication to a request for comment about the disproportionate amount of opposition expressed at Thursday’s hearing.
The department will continue accepting comment on the proposed policy until 5 p.m. on Friday, July 8. Members of the public can direct comments to Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210, or email comments to email@example.com.
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