Court hears challenge to state’s new birth certificate law

State argues there is no right to change birth certificate; ACLU says new law violates state constitution

By: - December 22, 2021 5:42 pm

Attorney Akilah Lane speaks to Yellowstone County District Judge Michael G. Moses at a hearing on Dec. 22, 2021 on a challenge to Senate Bill 280. Seated at the attorneys’ table is Alex Rate of the ACLU of Montana (Photo by Darrell Ehrlick of the Daily Montanan).

The challenge to Montana’s change in how it amends sex on a birth certificate got its first hearing in a Yellowstone County District Court on Wednesday, as attorneys for the state argued the case should be dismissed while attorneys for two transgender clients argue the state needs to enact a preliminary injunction to revert back to the law before it was signed into law in April by Gov. Greg Gianforte.

Senate Bill 280 changed how sex could be changed on birth certificates in Montana. Previously, a person could attest to their gender and have it changed. However, the law now requires a person to undergo “surgery” and have a court order before changing it.

Lawyers for the American Civil Liberty Union of Montana, who represent Amelia Marquez and another anonymous client, “John Doe,” argued that the change in the law serves no legitimate government interest, singles out transgendered residents and violates the state’s privacy clauses, including disclosure of medical records.

Meanwhile, assistant state solicitor general Kathleen Smithgall said the new law treats everyone equally, that the state has a well-established history of maintaining accurate records and that transgender individuals are not a recognized protected class in Montana law.

Smithgall argued that the case should be dismissed because the plaintiffs could not prove that the new law, SB280, was the cause of any additional burdens since both had the opportunity to change their birth certificate before the change in law and did not do so.

“This is a policy disagreement, not an equal protection claim,” Smithgall said. “They don’t like the policy change. Plaintiffs cannot point to a constitutional right they’ve lost under 280.”

ACLU attorneys Akilah Lane and Alex Rate argued that in addition to serving no legitimate state interest, the new laws also forced private medical records to be disclosed and asked something medically impossible – a “surgery” that demonstrates a gender change. In court, they argued there was no single surgery that could do that, and the law is too vague because it says “surgery” but not what kind of procedure would satisfy the new law.

Smithgall said that the law applies equally to any resident wanting to change a birth certificate, and pointed out that adopted children were the class of people most often wanting to amend – or change – a birth certificate. But Lane and Rate responded that only those wanting to change their sex on a birth certificate must submit medical records.

“What the plaintiffs are trying to do is ask this court to create a new protected class,” Smithgall said.

She said that disclosure of private medical records was voluntary because the process of changing a birth certificate is not required.

“It borders on offensive that the state believes the harm is only theoretical when it’s well documented that violence against transgender individuals is often a matter of life and death,” Rate said.

Lane said that the vagueness of the law – not defining what procedure qualifies – places “an impossible burden” on those who want to change their birth certificate. Rate also argued that if the state was interested in the accuracy of its vital statistics, it would welcome the changes to reflect the true gender expression of the population.

“The State of Montana refuses to acknowledge who these Montanans know themselves to be,” Lane said.

She said the state has provided no evidence of inaccuracies or fraud, which may have justified the more restrictive change. Lane also said the state’s highest court affords medical documents and choices “broad and robust privacy protections.”

“No one wants to go in front of a stranger – a judge nonetheless – and show personal records just to change a birth certificate. The court lacks the expertise to say what medical procedures are needed to bring about a gender change. It is an unwarranted and unnecessary intrusion to a person’s right to privacy. The state is not qualified to determine who is authentically transgender.”

District Court Judge Michael G. Moses did not make any rulings, instead asking for more briefs since the Montana Human Rights Board just issued its decision that the case, and a similar complaint made by the ACLU, could not be handled there because the issues are a matter of state constitutional law.

However, Moses did ask about the motion for a preliminary injunction, noting that the law has been in effect for eight months, questioning what its effect may be.

“These injuries that the plaintiffs claim predated Senate Bill 280. Those possible injuries existed prior to 280, so the harm can’t possibly be traceable to 280,” Smithgall said.

And unlike voting or abortion, she argued that changing a birth certificate is not enshrined in the Montana constitution.

“You don’t have a right to change your birth certificate,” Smithgall 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. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.