Judge Blocks Montana Law Preventing Gender Changes On Birth Certificates

A state court judge in Montana issued an order on Thursday blocking a recent state law that would prevent transgender residents from changing the gender on their birth certificates without having had sex-change surgery.

The order comes in a lawsuit that challenges a new law passed by the Montana state legislature in April 2021 that went into effect last week through rules adopted by state health officials. The law set the path for administrative officials to allow changes in gender designation in birth certificates only if a person has undergone a surgical procedure to change their sex as assigned at birth.

District Court Judge Michael G. Moses ruled earlier this year that the state law violates the equal protection and due process clause of the state constitution and also unlawfully impacts privacy rights.

State health officials then adopted a new rule that prohibits any changes to birth certificates under any circumstances.

Until the new law was passed, residents could have their birth certificates amended to change their gender by submitting a form that indicated they had decided to transition to the opposite gender, a court order indicating a change in gender, or a copy of state-issued identification showing their preferred gender.

Moses chastised attorneys for the state for working around his previous order by prohibiting all changes to certificates. He told them, “I’m a bit offended the department thinks they can do anything they want.”

Moses wrote in his order that he considered the legal distinctions between “gender identity” and “sex.” He stated the “medical consensus in the United States is that gender identity is innate and that efforts to change a person’s gender identity are harmful to a person’s health and well-being, but also are unethical.”

The judge wrote that he believes “surgery is not medically necessary, or medically desirable, for all transgender people.” He also found that for some people who are candidates for surgery, specific procedures “vary based on the person’s individual needs.”

Moses also wrote that surgery is sometimes too expensive for someone who would otherwise prefer to have a sex-change procedure and that medical decisions about elective surgeries are “profoundly personal.”

Immediately after Moses issued his decision, the state Department of Health and Welfare said that it would continue to refuse to make changes to birth certificates, notwithstanding the latest ruling.

Montana Director of Public Health and Human Services Charlie Brereton said that the department had “thoroughly evaluated the judge’s vague April 2022 decision and crafted our final rule to be consistent with the decision.” He added that Thursday’s ruling “does not square” with Moses’ ruling in April.