BILLINGS, Mont. (AP) – Montana Gov. Greg Gianforte’s administration has said transgender people cannot change their birth certificates even if they undergo gender confirmation surgery, in defiance of a court order that blocked temporarily the Republican state’s attempt to restrict transgender rights.
The state health department said in an emergency rule it would no longer record the ‘sex’ category on people’s birth certificates, replacing that category with a list of ‘sex’ – male or feminine – which can only be changed in rare circumstances. .
Sex is “immutable”, according to the rule, while gender is a “social construct” that can change over time.
“Sex is different from gender and is an immutable genetic fact, which cannot be changed, even by surgery,” said Ruler of Public Health and Human Services Director Adam Meier, a Gianforte appointee.
According to civil rights group Lambda Legal, only Tennessee, Oklahoma and West Virginia have similar prohibitions against birth certificate alterations. Bans in Idaho and Ohio were reversed in 2020, according to the group.
Other states have also recently sought to restrict transgender rights, including Indiana where lawmakers on Tuesday overruled their governor’s veto and banned transgender women from participating in girls’ school sports.
The Gianforte administration’s rule was released just over a month after a state judge temporarily ruled blocked enforcement of new Montana law which requires transgender people to have undergone “surgery” before being allowed to change sex on their birth certificates.
Judge Michael Moses ruled that the law was unconstitutionally vague because it did not specify what procedure had to be carried out. The law also required transgender people to obtain a court order stating that they had undergone surgery.
Moses’ order forced the state to revert to a process adopted in 2017 whereby transgender residents could apply to change the gender on their Montana birth certificate by filing sworn affidavits with the health department.
But state health officials said the April 21 decision placed them in “an ambiguous and uncertain position” and led them to craft the temporary state of emergency.
The changes go beyond restrictions on transgender rights imposed by the Republican-dominated state legislature and signed into law by Gianforte.
Shawn Reagor of the Montana Human Rights Network said the rule was “politically motivated and malicious” and would harm transgender people who want to participate fully in civil society, which includes having their gender recognized.
“It’s validated and seen for who you are. But more than that, it’s being able to navigate society and be active in today’s world without being threatened with violence or discrimination,” Reagor said.
Democratic state lawmakers expressed outrage, calling the rule a “flagrant abuse of power designed to undermine the checks and balances of our independent courts.”
“While this rule is meant to make life harder for our transgender neighbors, it affects us all by eroding the rights that allow us to live our lives free from government excesses,” the Minority Leader told House Kim Abbott and Senate Minority Leader Jill Cohenour.
According to the rule, the gender list can only be changed if a person’s gender is misidentified at birth or if the gender was misrecorded as a result of an “encryption error,” according to the rule.
In response to questions about the new rule, the Department of Public Health and Human Services said “all individuals should be treated with dignity and respect”.
“However,” the agency’s statement continued, “as stated in the state of emergency, the Department has an obligation to ensure the accuracy of vital records.” Officials said the rule complies with state law and fills “a critical regulatory gap” while obeying the April court ruling.
But ACLU of Montana attorney Akilah Lane — who filed a lawsuit to block the state law — said the group would take the case back to Moses court.
“The court order could not have been clearer. The court ordered the state to return to the status quo,” she said. “Instead, by issuing this emergency rule, they have simply shown their true colors – that these laws and regulations are meant to harm transgender people.”
Half of US states, plus the District of Columbia, allow transgender residents to change the gender designation on their birth certificates without a surgical requirement or court order, according to the political organization Movement Advancement Project which supports transgender rights.
Just over a dozen states require surgery to change sex on birth certificates and such barriers have been challenged in several states.
Many transgender people choose not to have gender confirmation surgery. Such procedures are sometimes deemed unnecessary or too costly, two Montana transgender residents argued in their July 2021 lawsuit challenging Montana’s law.
In recent years, legislation in many states has sought to limit the rights of transgender people, and new laws are being challenged in court.
Alabama passed a law making it a crime for doctors to prescribe treatments such as puberty blockers and sex-confirming hormones to transgender minors, but a judge blocked the law.
In Texas, Republican Gov. Greg Abbott ordered child welfare officials to je investigate parents children receiving puberty blockers and other gender-confirming care as potential abuse. This effort was blocked by a judge.
At least a dozen states have recently passed laws banning transgender girls and women from participating in women’s sports, more recently Utah.