State health department returns to near ban on transgender birth certificate changes

The Montana state health department has announced its return to a near prohibition on individuals updating the sex on their birth certificates to match their gender identity, reigniting a civil rights feud with transgender residents that was the subject of a prior lawsuit.

In a Tuesday press release, the Gov. Greg Gianforte administration’s Department of Public Health and Human Services said the latest rule applies to any not-yet-adjudicated request to update the “male” or “female” category on a birth certificate submitted or pending with the department on or after Oct. 1, 2023. 

The rule now in effect was originally created by the department in 2022 as a way to restrict changes to birth certificates for transgender Montanans while the agency was involved in a court battle over a related Republican law from the prior legislative session. 

The rule was ultimately blocked from taking effect because of the pending litigation in the Yellowstone County case brought by the ACLU of Montana. At that point in the litigation, the judge overseeing the case slammed the department for attempting to write new rules about birth certificates before the related lawsuit had been resolved, later holding the agency in contempt of court. 

However, when the law at issue, Senate Bill 280, was permanently enjoined in June of last year, the state health department was no longer barred from creating administrative rules about how to handle changes to sex on birth certificates.

In the announcement Tuesday, the department outlined the narrow circumstances that would allow an individual to change the sex listed on their birth certificate under the current rule. 

“The 2022 final rule states the sex of a registrant on a birth certificate may only be corrected if the sex of an individual was listed incorrectly on the original certificate as a result of a scrivener’s error or a data entry error, or if the sex of the individual was misidentified on the original certificate,” the state health department said. “In both cases, the department must receive a correction affidavit and supporting documents consistent with the law.”

The state health department said the rule, though years old, also complies with a law from the 2023 Legislature that seeks to create a strict definition of “sex” across state government. That law, Senate Bill 458, is sponsored by the same Republican lawmaker who brought the original bill to restrict birth certificates in 2021, Sen. Carl Glimm, R-Kila. 

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” said department director Charlie Brereton in a written statement. “This notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.”

While there have been legal challenges filed against SB 458 in recent months in state and federal court, the law has not been enjoined and is currently in effect.

Alex Rate, legal director of the ACLU of Montana, said the health department’s latest action is grounds for a new lawsuit against the 2022 rule and the agency’s interpretation of SB 458. 

“We’ll be back in court, no doubt,” Rate told Montana Free Press Tuesday. “The new rule runs afoul of the same constitutional provisions, from dignity to privacy to equal protection.”

In explaining the grounds for a lawsuit, Rate said the rule implementation and SB 458’s effects more broadly signal the state’s prohibitive stance towards trans people. 

“Once again, this latest action by the [health department] betrays the state’s deep and abiding animus towards trans people in Montana,” Rate said. “Trans people belong here. They are trying to live out their ordinary lives.”

Rate said the organization aims to file its latest lawsuit in the coming weeks but did not provide a more precise timeline.