On Friday, Montana health officials approved a proposed rule change to change gender identification on state-issued birth certificates.
Birth certificates now exclude changes after sex confirmation surgeries.
The Montana Department of Public Health and Human Services made the rule change on Saturday.
The change makes it impossible for transgender people to change the sex on their birth certificate.
Changes are only allowed in very limited cases.
The new rule also states that the sex on a birth certificate can only be changed if it was incorrectly stated on the original certificate “as a result of a scrivener’s error or a data entry.”
Another exception to the rule is when “the sex of the individual was misidentified on the original certificate and the department receives a correction affidavit and support documents, … including a copy of the results of chromosomal, molecular, karyotypic, DNA, or genetic testing that identify the sex of the individual.”
Building up to the change
The decision by Republican Gov. Greg Gianforte’s administration comes days before a court will hear arguments on the legality of a similar rule, which has been in effect for emergencies since May.
The ACLU of Montana asked State Judge Michael Moses to lift the state of emergency.
In April, Moses temporarily blocked a 2021 Montana law that made it difficult for transgender people to change their birth certificates.
The law required people to undergo “surgical procedure” before they could change the sex listed on their birth certificates.
Meanwhile, Gianforte’s administration continued, blocking changes to birth certificates even after surgery.
Response to the change
In recent years, conservative lawmakers in many states have campaigned to curtail the rights of transgenders.
According to transgender rights advocates, Tennessee, Oklahoma, and West Virginia have similar bans on changing birth certificates.
Meanwhile, the bans in Idaho and Ohio were lifted in 2020.
Transgender prosecutors, represented by the ACLU of Montana, have said that a birth certificate that doesn’t match their gender identity embarrasses, discriminates, harasses, or constitutes violence if asked to prove a birth certificate.
ACLU attorney Akilah Lane said Friday’s rule was “further evidence of the state’s non-compliance” with Moses’ order in April.
The judge will hear the case on Thursday at a hearing in Billings.
The difference between the changes in the past and the present
Before the new law, transgender people who wanted to change their birth certificates in Montana only needed to file an affidavit with the state health department.
With the new rule, the Department of Health and Human Services said it will no longer list the “gender” category on birth certificates.
Instead, they would replace it with a “sex” entry, which can only be changed in rare cases.
Moses said the law passed by the 2021 legislature was unconstitutionally vague, as it did not specify which surgical procedures were needed.
State health officials said the court’s ruling left them in “an ambiguous and uncertain situation” weeks later.
He also approved changes to the rules to clarify when a gender designation on a birth certificate might change.