ACLU challenges birth certificate law aimed at transgender citizens

Suit states SB280 violates state constitution, targets transgender individuals

By: - July 16, 2021 4:14 pm

(Photo by Ted Eytan, used through a Creative Commons license by the Daily Montanan).

The American Civil Liberties Union and two Yellowstone County residents have filed a lawsuit in district court challenging Senate Bill 280, passed by the 2021 Legislature and signed into law by Gov. Greg Gianforte, which requires a judge and the Department of Health and Human Services to approve a birth certificate change for those who are transgender.

The lawsuit says the new law unfairly targets transgender citizens, requiring them to go through multiple legal hurdles to change a birth certificate, even though others do not have that requirement. Furthermore, it places transgender Montanans at risk of violence, and the state has failed to show a compelling reason for the law, which lawyers say also violates the state’s Constitution.

SB280 was one of three bills taken up by the legislature that took aim at transgender Montanans. The other two dealt with prohibiting doctors from treating transgender youth, while the third bill required student athletes to play on sports teams based on the gender they were assigned at birth.

The case, filed Friday, has been assigned to Judge Michael Moses in Yellowstone County.

The legal challenge attacks the new law on several fronts, including a new procedure that would require any person wanting to change the gender on a birth certificate to turn over medical records and prove they’ve had a surgical procedure to change gender. The law, the suit complains, is vague and does not specify what surgical procedure is required to satisfy the requirement.

“Not all transgender people are able to undergo the gender-affirming surgery the act compels,” the suit states. “For some, the surgery is not medically necessary, while for others it is medically contraindicated. Others do not have health-insurance coverage for, or cannot otherwise afford the cost of surgery. Others cannot take off time from work for the surgery.”

The suit argues the state has no role to play in deliberations of gender identity and gender-affirming surgery, and subjecting transgender residents to court scrutiny and that of the Department of Health and Human Services is a violation of privacy.

Moreover, not changing a birth certificate can have dangerous consequences.

“Forcing transgender people to use identity documents that do no match their gender identity, or forcing them to go without identity documents is inconsistent with medical protocols and can result in anxiety and depression,” the suit states. “Being forced to hold and present documents that do not match a person’s gender can also result in discrimination and violence when transgender people are called upon to present identification that identifies a sex designation inconsistent with how a transgender person publicly presents himself or herself.”

From 2017 until the law was passed, the DPHHS had only required a completed gender designation form that attested to a gender transition, government-issued ID displaying the correct sex designation or providing a certified court order indicating a gender change. The 2017 rules did not require a court proceeding or an attorney, both of which, the case argues, are now required.

The suit also said that cisgender residents — those whose gender identity matches their sex assigned at birth — can make changes to their birth certificate without the same requirements, the case alleges.

The suit asks for the court to rule the act unconstitutional and asks for a preliminary injunction and later a permanent injunction from enforcing the act. Gov. Gianforte and DPHHS Director Adam Meier are listed as defendants in the case, in their official capacity. The DPHHS is also named. In addition to attorneys from the ACLU of Montana, attorneys from the ACLU Foundation’s LGBTQ and HIV Project are counsel in the case, as are three attorneys from the Chicago-based firm Nixon Peabody.

“The act’s sole purpose is to intentionally burden a transgender person’s ability to correct their birth-certificate sex designation to conform with their gender,” the suit said.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.