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Montana Judge Blocks Transgender Birth Certificate Policy

AP Photo/Armando Franca

A judge in Montana blocked a 2021 state law that prohibits transgender people from changing the gender listed on their birth certificate without undergoing “gender-affirming” surgery. 


Last year, Montana Gov. Greg Gianforte (R) signed S.B. 280 into law, which required transgender residents to undergo a sex reassignment procedure if they wanted to change their birth certificate to match their “gender identity” instead of their biological sex. Previously, trans residents who wished to change their gender on their birth certificate could do so by filling out an affidavit with the state Department of Public Health and Human Services.

“The sex designation on a birth certificate could only be amended if DPHHS received a certified copy of an order from a court indicating that the sex of an individual born in Montana had been changed by surgical procedure,” S.B. 280 states. “The order must contain sufficient information for the department to locate the original birth certificate. If the person's name is to be changed, the order must indicate the person's full name as it appears on the original birth certificate and the full name to which it is to be amended.”

Plaintiffs challenged the law shortly after “because it violates transgender Montanans’ right to equal protection, privacy and due process,” according the American Civil Liberties Union (ACLU). The organization was part of the lawsuit. 

On Thursday, District Court Judge Michael G. Moses ruled that S.B. 280 violated equal protections, privacy and due process outlined in the state’s constitution. In his ruling, he wrote that “surgery is not medically neccesary, or medically desireable, for all transgender people,” according to Fox News. He also wrote that there are distinctions between gender and sex, implying that they are not the same thing.


Moses’ decision came days after state health officials adopted a rule permanently blocking residents from changing the gender on their birth certificates, which Townhall covered. The rule stated that the sex listed on a person’s state-issued birth certificate may only be changed in limited circumstances, such as “scrivener’s error” or “the sex of the individual was misidentified on the original birth certificate:

(b) The sex of a registrant as cited on a certificate may be corrected only if: 

(i) the sex of an individual was listed incorrectly on the original certificate as a result of a scrivener's error or a data entry error, and the department receives a correction affidavit and supporting documents, consistent with ARM 37.8.108(4), (5), and (6), including a copy of the records of the health care facility or attending health care professional, contemporaneous to the birth, that identify the sex of the individual, with an affidavit from the health care facility or professional attesting to the date and accuracy of the records; or 

(ii) the sex of the individual was misidentified on the original certificate and the department receives a correction affidavit and supporting documents, consistent with ARM 37.8.108(4) and (5), including a copy of the results of chromosomal, molecular, karyotypic, DNA, or genetic testing that identify the sex of the individual, together with an affidavit from the health care facility, health care professional, or laboratory testing facility that conducted the test and/or analyzed the test results, attesting to the test results and their accuracy.


“As some scientists have noted, ‘[h]uman sex is an observable, immutable and important biological classification,’ it is biological (and thus, genetic), binary, and immutable,” the rule continued. “The department agrees.”

Reuters reported that Moses’ decision on S.B. 280 also applied to the new rule, writing that it “cannot be circumvented by departmental action.” Back in April, Moses placed a preliminary injunction on S.B. 280, which Townhall covered. Moses claimed that the injunction “enjoined all aspects” of the law.

Following Moses’ ruling, the state said it would disregard it. Charlie Brereton, the director of the DPHHS, said that the Department “thoroughly evaluated” Moses's ruling from April and said that the Health Department’s new rule was “crafted to be consistent with the decision,” according to the Associated Press.

Brereton added that the agency is keeping its rule in place. An agency spokesperson reportedly said that it is waiting to see the judge’s written order before it considers next steps.

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