The Montana Department of Public Health and Human Services officially adopted a rule that only allows sex listed on a birth certificate if it is incorrect due to a scrivener or data entry error.
Opponents of the rule say it will make it nearly impossible for people who identify as transgender to alter their sex at birth to reflect the gender with which they identify.
District Judge Michael Moses of Billings called the rule “vaguely unconstitutional” in April and issued a temporary injunction. Moses said the rule deprived transgender people of “significant control” over disclosing their gender identity and constitutes discrimination.
The DPHHS then issued an emergency order in May stating sex is an “immutable genetic fact, which is not changeable, even by surgery” and therefore could not be altered on state documentation. The department also announced sex, rather than gender, would be listed on all newly issued birth certificates.
“The court’s decision leaves this department in an ambiguous and uncertain situation,” the department wrote. “Montanans deserve to know how such applications will be handled in this period.”
“The department notes that a birth certificate is, first and foremost, a vital record which records the facts concerning the birth of a person in Montana,” added the DPHHS. “There are important departmental and public health interests in the collection and maintenance of accurate vital statistics and records such as these. It is, therefore, critical that the department’s Office of Vital Records have clear direction so that it can administer the vital records program in such a way that ensures the accuracy of such vital records.”
In a notice published on Sept. 9, the DPHHS said the rule “is consistent with the scientific and medical recognition of ‘sex’ as a biological concept.”
“Science and medical knowledge recognize the difference between ‘sex,’ which is a biological concept (and a biological fact), and ‘gender,’ which is a psychological, cultural, and/or social construct,” read the notice.
The American Civil Liberties Union of Montana has asked a judge to block the latest iteration of the rule, which the organization says puts transgender-identifying people at risk of discrimination, harassment or violence.
ACLU attorney Akilah Lane told AP News that the rule is “further evidence of the state’s non-compliance” with Moses’ April order.
Both the ACLU of Montana and the state will appear before Moses in a Billingsly court on Sept. 15 to debate the law.
Oklahoma, Tennessee and West Virginia also have rules prohibiting the alteration of gender or sex markers on original state-issued birth certificates.
