The Montana Department of Public Health and Human Services (DPHHS) issued a temporary emergency rule on Monday to ban transgender from changing the sex marker on their birth certificate even after gender reassignment surgery. The order took into effect immediately.
DPHHS stated that a birth certificate is, first and foremost, a vital record that records the facts concerning the birth of a person in Montana. According to the order, the terms “sex” and “gender” should not be used interchangeably because they are different.
DPHHS Director said in the order, sex is “immutable” and gender is merely a social construct.
“As previously established, sex is different from gender and is an immutable genetic fact, which is not changeable, even by surgery. Accordingly, this emergency rule does not authorize the amendment of the sex identified/cited on a birth certificate based on gender transition, gender identity, or change of gender.”
The only instances that someone can change their sex is when a “person’s sex, as a biological, immutable fact, is misidentified at birth and the wrong sex is then cited.”
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The emergency rule, issued Monday by state health department Director Adam Meier, is a direct challenge to a court order handed down in April that blocks the state from enforcing a law that limits how the department may alter sex designations on state-issued birth certificates. The American Civil Liberties Union (ACLU) of Montana, the ACLU Foundation LGBTQ & HIV Project and the law firm Nixon Peabody LLP challenged the measure in a lawsuit filed last year on behalf of two transgender Montanans.
In April, a Montana judge ordered the state to halt its enforcement of Senate Bill 280, a law passed last year to restrict the way in which DPHHS may amend sex designations on state-issued birth certificates. Under the law, a resident’s sex designation may only be changed if DPHHS receives a court order indicating that “the sex of a person has been changed by surgical procedure.”
Yellowstone County District Court Judge Michael G. Moses wrote in the order that “transgender people who are denied accurate birth certificates are deprived of significant control over” how they disclose their identity. Inaccurate identity documents have also been linked to discrimination and harassment that can put the lives of transgender people at risk.
But on Monday, DPHHS argued that Moses’ decision had left the department “in an ambiguous and uncertain situation” because it had not mandated the department to re-implement a 2017 policy that had allowed transgender residents to change their birth certificates without proof of gender-affirming surgery. That policy had been eliminated by Senate Bill 280, meaning there is currently “no non-enjoined regulatory mechanism” to accept and process sex identification amendment applications, DPHHS said.