Montana says it will comply with court order requiring it to use less strict process for modifying birth certificates

Supporters of LGBTQ rights gather on the steps of the Montana State Capitol in Helena on March 15, 2021.

CNN  — 

Montana will comply with a court order requiring it to enforce a process that makes it easier for residents to change the sex designations on their birth certificates, the state’s health department said Monday, abandoning a recent effort to impose stricter rules in the record-changing process.

“The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” said Jon Ebelt, a spokesman for Montana’s Department of Public Health and Human Services, in a statement.

In a Monday order, Judge Michael G. Moses blasted the department for defying a preliminary injunction issued in April that said the state had to pause its enforcement of a 2021 law that required transgender Montanans to undergo a “surgical procedure” if they wanted to amend their birth certificates’ sex designations to match their gender identity.

Under a rule change adopted earlier this month, it became virtually impossible for transgender residents to change the sex listed on their birth certificates by now only allowing changes under very limited circumstances.

“Defendants apparently interpret ‘that which existed prior to the enactment of SB 280’ to mean they have carte blanche to enact whatever regulations they want,” Moses wrote, referring to the 2021 law.

The judge called the department’s argument that the order put it in an uncertain regulatory situation “demonstrably ridiculous,” and said motions for contempt would be “promptly considered” if officials didn’t comply.

Ebelt said 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.” The department, he said, is “carefully considering next steps in the litigation.”

It’s unclear when the health department will begin processing applications to amend birth certificates.

According to the new rule that went into effect in early September, the sex on a birth certificate can now only be changed if it was listed incorrectly on the original certificate “as a result of a scrivener’s error or a data entry error” or if “the sex of the individual was misidentified on the original certificate and the department receives a correction affidavit and supporting documents … including a copy of the results of chromosomal, molecular, karyotypic, DNA, or genetic testing that identify the sex of the individual.”

SB 280, the April 2021 law being challenged in court by two transgender Montanans, states the sex listed on a person’s birth certificate may only be changed with a court order indicating the person had undergone gender reassignment surgery.

The plaintiffs claim the law violates their constitutional right to privacy and due process, as well as the 14th Amendment’s Equal Protection Clause. They also argue that the law was vague and didn’t adequately describe the types of medical procedures required to satisfy the state’s definition of a sex change.