Trans and intersex people in Montana are now barred from changing birth certificates

Montana has adopted one of the most draconian sets of birth certificate change rules in the country, effectively prohibiting trans and intersex people from altering these crucial documents to match their identity.

The Treasure State had previously enacted an “emergency rule” that changed the gender designation on birth certificates to “sex.” Montana Director of Public Health and Human Services Adam Meier claimed that the latter was “an immutable genetic fact, which is not modifiable, even by surgery”, in comments reported by The Associated Press in may.

Montana health officials made that rule permanent on Friday, according to the Montana Free Press. The rule states that the sex on an individual’s birth certificate can only be changed if it was listed incorrectly “as a result of an encryption error or data entry error”, or if the sex was initially “misidentified”. In either case, full documentation to change the gender on a birth certificate would be required, including “chromosomal, molecular, karyotypic, DNA, or genetic tests that identify the individual’s gender.” If that wasn’t clear enough, the rule also states that birth certificate changes “based on gender transition, gender identity or gender reassignment” are not permitted.

This is despite a judge issuing a preliminary injunction against a less restrictive birth certificate law, Senate Bill 280, earlier this year after the American Civil Liberties Union sued Montana for the to block. SB 280 would have required trans people to verify that their gender had been changed through a “surgical procedure” before they could change their birth certificate.

Advocates have spoken out against the rule, with Shawn Reagor, director of equality and economic justice at the Montana Human Rights Network, calling the policy “deeply troubling.”

“They went against the advice of physical and mental health experts, teachers, parents and concerned community members,” Reagor told the Free Press. “Montanese have made their will clear in the public consultation process, and the justification the Gianforte administration has given for flying in the face of that will can most generously be described as gaslighting and misleading.”

Local NBC affiliate KTVH reported in June that nearly 100 Montana residents voiced their opposition to the rule at a public hearing. Only two people expressed support for the rule. Montana resident Gwen Nicholson told KTVH that she feels her “civil rights have already been unduly curtailed.”

“The risk of discrimination and physical harm that I face in my life has been high,” Nicholson said.

These are risks faced by many trans people who have incompatible identity documents, which could represent about 34% of the trans population in the United States, according to a 2021 report from the Williams Institute. Trans people with inconsistent IDs have reported a variety of repercussions, ranging from inability to vote to denial of services or even physical or sexual assault.

This makes Montana the fourth state to completely prevent people from changing the gender marker on their birth certificate, alongside Oklahoma, Tennessee and West Virginia, according to the Movement Advancement Project. 12 other states require proof of “sex reassignment surgery” in order to change the marker.

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