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Montana issues rule banning gender marker changes on birth certificates

Montana Department of Health and Human Services

The new rule mirrors an old rule which was defeated in court.

Montana’s Department of Public Health and Human Services (DPHHS) has implemented a new rule that effectively prevents transgender residents from changing the gender marker on their birth certificates to reflect their true gender identity.

The rule applies to all pending requests received by or after October 23, 2023, the effective date of S.B. 458, the new controlling state legislation.

Gender markers on birth certificates issued in Montana can now only be changed if a person’s sex was misidentified on the original document, or as the result of a scrivener’s or data entry error.

The new rule is the same 2022 rule that was challenged and ultimately defeated in court by the ACLU of Montana as part of a lawsuit against the original controlling legislation.

State officials say the resolution of the lawsuit and passage of S.B. 458 means the DPHHS is not just free to issue a new rule but is required to do so by law.

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” DPHHS Director Charlie Brereton said in a statement announcing the new rule. “This notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.”

The statement noted that “S.B. 458 defines sex in Montana law and provides that sex is to be determined by the biological and genetic indication of male or female without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.”

Activists were quick to object to the new rule, saying it is the same rule that was recently adjudicated by the courts.

“We’ll be back in court, no doubt,” Alex Rate, ACLU of Montana’s legal director, told Montana Free Press on Tuesday. “The new rule runs afoul of the same constitutional provisions, from dignity to privacy to equal protection.”

Rate said the new rule and legislation reflected the state’s continued hostility to the transgender community.

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