HELENA — Governor Greg Gianforte's administration published a rule change on Thursday, September 8, 2022, that said the state health department will not amend the sex marker on a birth certificate based on “gender transition, gender identity, or change of gender.”
This was despite an almost three-hour long public hearing held in June by the Montana Department of Public Health & Human Services, during which more than 100 people spoke against the rule and two spoke in favor. Many of those who spoke against the rule cited the potential mental health consequences for transgender people who cannot affirm their gender identity on their birth certificates.
In DPHHS' response, it said it did not know of any evidence that "the rule will lead to increased rates of suicide within the transgender community," as some people at the hearing said.
Montana Human Rights Network Director of Equality & Economic Justice Shawn Reagor said state health department's response to public comment was disturbing.
"I think it's pretty clear that the department decided what they were going to do and then held a public hearing because they were required to," Reagor said. "
New DPHHS Director Charlie Brereton signed the rule amendments and scheduled the rule to go into effect on Saturday. The department also repealed a similar emergency rule it issued in May after Yellowstone County District Judge Michael G. Moses ordered the Montana Department of Public Health and Human Services to stop enforcing a 2021 law.
Under the 2021 law, transgender Montanans needed to show proof they’d undergone surgery and gotten a court order before the state would swap their birth certificate sex or gender marker. Two transgender Montanans sued over the law and Moses ordered the department to stop enforcing it while the case was argued in court.
Whether the state is even allowed to create a new rule related to birth certificates and gender markers while the case is ongoing, will be argued next week in Moses' court.
When Moses issued the preliminary injunction, the ACLU said the state was supposed to return to the status quo, which the judge’s order identified as the 2017 law. In contrast to the 2021 law, the 2017 method required just a form and an affidavit from the person seeking the fix.
ACLU attorney Akilah Lane said the adoption of the new rule was further evidence of the department's non compliance with the court order.
"We're prepared to have a hearing to help the state better understand what is required of them so they can comply with these duties pursuant to the preliminary injunction order," Lane said.
In Moses' order granting the preliminary injunction, he said: "Transgender people who are denied accurate birth certificates are deprived of significant control over" how they disclose their transgender identity.
A mismatch between a person's gender identity and the information on their birth certificate also subjects transgender people to discrimination and harassment at work, at the doctor's office, and in interactions with government officials, the order said.
"A mismatch between someone's gender identity and the information on their birth certificate may even subject them to violence," according to the order.
DPHHS did not respond to a request to speak with Brereton about the new rule amendments.
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