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Montana Reinstates Ban on Gender Marker Changes for Birth Certificates

Montana is rated as one of the most dangerous states for transgender people.

The Montana Department of Public Health and Human Services is reinstating a near-complete ban on individuals altering their birth certificates to reflect their gender identity.

In 2022, the state’s health department adopted an administrative rule barring residents from changing their birth certificates with limited exceptions. However, this rule was blocked by the court after the ACLU of Montana brought litigation challenging the rule. In June 2023, the trial court granted summary judgment in the ACLU’s favor, permanently enjoining enforcement of the rule. The Judge even held the health department in contempt of court for advancing anti-transgender administrative regulations prior to the resolution of a related lawsuit.

Although the court permanently prohibited the administrative rule, the state health department was then allowed to once again write administrative guidelines regarding gender marker changes on birth certificates.

Alex Rate, legal director of the ACLU of Montana, told the Montana Free Press, “We’ll be back in court, no doubt.” Rate said that the new administrative rule relies on the same unconstitutional provisions as the one previously enjoined by the courts, and that the ACLU is planning to bring a legal challenge to the new rule in the coming weeks. “The new rule runs afoul of the same constitutional provisions, from dignity to privacy to equal protection,” Rate went on.

The state health department has asserted that despite this anti-trans rule being a new iteration of one that is years old, it aligns with an anti-trans statute passed in 2023. That statute, Senate Bill 458, defined sex so narrowly that experts said that it could exclude transgender individuals from protections under anti-discrimination laws. Republican Sen. Carl Glimm, the same legislator who introduced the original bill to restrict birth certificates in 2021, also sponsored Senate Bill 458. The ACLU of Montana brought a legal challenge to Senate Bill 458 in December 2023, but the law has not yet been enjoined by the courts.

Montana is rated as one of the worst states for transgender people on the legislative risk assessment map created by transgender journalist Erin Reed. In addition to legally erasing transgender people, which effectively removes any legal rights associated with their gender identities, Montana also has a gender-affirming care ban in place and has a ‘negative’ LGBTQ policy tally, according to the Movement Advancement Project (MAP). In April 2023, the state’s first openly transgender legislator, Rep. Zooey Zephyr (D), was censured following her vocal opposition to the slew of anti-LGBTQ bills introduced by her Republican colleagues.

“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.”

Montana is one of 17 states that make it difficult, if not impossible, to amend gender markers on a person’s birth certificate and one of 23 states that bans best-practice medical care for transgender youth. In 2023, 510 anti-LGBTQ bills were introduced in legislatures across the country, eight of which were introduced in Montana. This legislative session has already seen the introduction of 442 anti-LGBTQ bills, outpacing the anti-LGBTQ activity seen in 2023 that warranted the Human Rights Campaign to issue a national state of emergency for LGBTQ Americans.

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