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Montana to Allow Gender to Be Altered on Birth Certificates Pending Legal Challenge

District Judge Michael Moses accused the DPHHS of intentionally violating his previous order

Montana will return to issuing new birth certificates to people who obtain a court order as a legal dispute over the issues continues.

A law passed by the state legislature that regulates the circumstances under which a person can alter the gender listed on their birth certificate has divided the state.

The law required people who identify as transgender to undergo surgical gender alteration and be granted a court order to be issued a new birth certificate with a different sex. Prior to the new law, people who identify as transgender had to file an affidavit with the health department in order to receive an altered birth certificate.

District Judge Michael Moses temporarily blocked the law in April. Moses said the policy was “unconstitutionally vague” because it did not specify what surgeries an individual would have to undergo to qualify for an altered birth certificate

The Montana health department announced in an emergency order in May that it would no longer list “gender” on birth certificates, replacing the category with “sex.” The department also adopted a new rule prohibiting the alteration of a sex listing on a birth certificate unless the document was issued with a clerical error. The rule was finalized in September. 

At the time, the Department of Public Health and Human Services said Moses’ ruling had caused “an ambiguous and uncertain situation.”

“Montanans deserve to know how such applications will be handled in this period,” said 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.”

The state’s health department will now temporarily return to allowing alteration to the gender listed on birth certificates as Moses considers a challenge to the rule brought by the American Civil Liberties Union of Montana.

In his latest order issued on Sept.19, Moses said the state’s interpretation of his earlier ruling was “demonstrably ridiculous” and that the department had made “calculated violations” of his order.

“If defendants requires further clarification, they are welcome to request it from the court rather than engage in activities that constitute unlawful violations of the order,” Moses wrote, per CBS News

Moses’s order included a copy of the state’s 2017 law regarding birth certificates.

The judge also said any motion of contempt of court brought by the ACLU would be “promptly considered.”

The DPHHS issued a statement noting that it is “carefully considering next steps in the litigation.”

“The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” the statement said, per The Montana Free Press. “The Department stands by its actions and analysis concerning the April 2022 preliminary injunction decision, as set forth in its rulemaking that addressed critical regulatory gaps left by the court.”

“From the perspective of transgender Montanans who are seeking to obtain accurate identity documents, today’s announcement is certainly progress,” Alex Rate, an attorney for the ACLU of Montana, to AP News.

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