Through an emergency rule on Monday, Montana’s public health department has eliminated nearly all options for transgender people to update their birth certificates to reflect their gender identity.
The agency’s move skirts the instructions of a Billings district court judge who last month issued a temporary injunction of Senate Bill 280, a 2021 law requiring surgery and a court order to amend the sex on a birth certificate. Without SB 280’s requirements in effect, DPHHS said there was no “regulatory mechanism” to process birth certificate change requests and the department needed to create a new one.
The emergency rule, which went into effect immediately and will likely be in place for months while a lawsuit challenging SB 280 procedes, allows changes to the sex on a person’s birth certificate in only two cases: evidence of DNA or genetic testing showing that the originally listed sex is inaccurate, or evidence of a data-entry error at the time the birth certificate was created. Neither option offers an avenue for transgender people to update the sex on their personal identification documents.
DPHHS’ decision sparked outcry from advocates for transgender rights, public health experts and Democratic lawmakers.
“This emergency rule is a blatant abuse of power meant to undermine the checks and balances of our independent courts,” said House Minority Leader Kim Abbott, D-Helena, and Senate Minority Leader Jill Cohenour, D-East Helena, in a Tuesday statement. “While this rule is intended to make the lives of our transgender neighbors harder, it impacts all of us by eroding the rights that let us live our lives free from government overreach. There’s no emergency here — just the kind of politics that Montanans hate.”
In his April 21 ruling, Judge Michael Moses said the Department of Public Health and Human Services was “enjoined from enforcing any aspect of SB 280” while the case continues, citing vagueness in the law and the likelihood of plaintiffs’ constitutional rights being infringed. Based on that reasoning, Moses found “that an injunction is necessary to minimize the harm to all parties and preserve the status quo pending final resolution on the merits.”
But in announcing its emergency rule, DPHHS argued that the agency had no status quo to return to. Under SB 280, the department said, it struck its rules enforcing a previous 2017 policy that allowed applicants to fill out a form to change their birth certificates.
“The court’s decision leaves this department in an ambiguous and uncertain situation,” the emergency rule notice said.
"The court’s decision leaves this department in an ambiguous and uncertain situation."Montana Department of Public Health and Human Services
Further justifying its decision to effectively block transgender Montanans from updating their birth certificates, the department stated that sex “is a biological concept that is encoded in an individual’s DNA and, thus, is genetic and immutable,” and so cannot be changed by surgery or gender identity.
Dr. Lauren Wilson, vice president of Montana’s chapter of the American Academy of Pediatrics, criticized that rationalization in an interview with Montana Free Press on Tuesday, noting that sex and gender are complex areas of medicine that are not adequately addressed by the emergency rule.
“Making the distinction of immutable sex versus gender is not supported by the medical evidence to date,” Wilson said. “And the fact that they’re using that to justify this rule is disingenuous at best and shows that they’re not listening to best practices in the care of people with nonbinary and trans identities.”
Wilson also said she was struck by the lengths to which the state health department went to limit options for transgender people.
“As someone who cares for transgender patients, I don’t understand why our state government is spending so much time, energy and money trying to prevent them from having accurate documentation,” Wilson said. “This rule is unfairly singling them out and making it even harder for them to live a public life in Montana.”
According to state law governing agency rulemaking, emergency rules “may be adopted only in circumstances that truly and clearly constitute an existing imminent peril to the public health, safety, or welfare that cannot be averted or remedied by any other administrative act.” The new emergency rule may eventually be subject to review by the Children, Families, Health and Human Services Interim Committee, whose members could object to all or part of the rule.
Shawn Reagor, an organizer with the Montana Human Rights Network, said he is encouraging Montanans to reach out to the state health agency and urge it to remove the emergency rule.
“There is absolutely no reason for it and it only does people harm,” Reagor said. “We know that this is an attack on the trans community. We know that this is made to make people feel small, and that they don’t have authority over their own lives.
"I think that the best way to counter it is to share our support with trans, nonbinary and two spirit folks and let them know that we’re not going to stop fighting for their rights.”