Judge finds birth-certificate changes imposed by Legislature violate Montana’s Constitution

Judge said Senate Bill 280 only affects transgender residents, invades privacy, is too vague

By: - April 21, 2022 6:31 pm

Transgender flags holding by people on a demontration (Photo by Getty Images).

A Yellowstone County District Court judge has ruled that a law meant to make changing a gender designation on a birth certificate more rigorous appears to violate the state’s constitution, and he’s blocked the law with a preliminary injunction.

Judge Michael G. Moses ruled that Senate Bill 280, which was passed by the Legislature in 2021, targeted only transgender individuals and was so vague as to be arbitrary when enacted because it failed to specify several important items, like what surgical procedure would satisfy the law, and who would judge which surgical procedures were adequate for changing the document.

Furthermore, Moses ruled that the law forced disclosure of sensitive medical records and ran afoul of the state constitution’s right to privacy.

“Today is a huge win for all Montanans as we strive toward a more equal community,” said Amelia Marquez, a transgender woman who brought the lawsuit and also has run for public office. “Our constitution provides the means to protect the most vulnerable Montanans, and I am thankful for those who continue to advocate for gender diverse Montanans and our rights.”

The law, passed by the GOP-dominated Legislature and signed by Republican Gov. Greg Gianforte, required proof of surgery before changing a birth certificate, something medical professionals argued was unnecessary and unwarranted. It also required a court order to change the document, an additional invasion of privacy and extra expense.

“Transgender people, including the plaintiffs, are precisely the only individuals effected by SB280,” the court decision said.

Vague law

Moses ruled that SB280 was also impermissibly vague.

“SB280 does not specify whether any licensed medical or other professional will review the submission to DPHHS; does not define or describe what constitutes a qualifying surgical procedure or a qualifying surgical result; and does not specify the nature of the proof, or the standards,” the judge’s order explained. “SB280 also contains no exceptions for medical contraindication or the inability to pay the cost of the mandate procedures.”

In his discussion, Moses said the law, in part, misunderstands the role of surgery.

“Plaintiffs provided unrebutted evidence describing that neither gender-affirming surgery nor any other medical treatment that a transgender person undergoes changes a person’s sex,” the ruling said. “Instead, gender-affirming surgery aligns a person’s body and lived-in experience with the person’s gender identity, which already exists. Therefore, it is unclear what type of ‘surgical procedure’ will meet the requirements to change ‘the sex of the person born in Montana’ given plaintiff’s evidence that no surgery changes a person’s sex.”

Because of the law’s vague nature, Moses said that it would allow a court, the Department of Public Health and Human Services the power of inconsistent decisions, “with the attendant dangers of arbitrary and discriminatory applications.”

Private information

Moses also said that by disclosing medical procedures and gender status, the law pries deeply into information that would otherwise be regarded as private.

“A mismatch between someone’s gender identity and the sex designation on their birth certificate discloses that a person’s transgender identity – a profoundly private piece of information in which a transgender person has a reasonable expectation of privacy,” Moses said. “Transgender people who are denied accurate birth certificates are deprived of significant control over where, when, how, and to whom they disclose their transgender identity.”

Moses ruled that the plaintiffs made a prima facia case that the law burdens their right to due process. He also ruled that they have adequately argued for privacy and equal protection.

Moses dismissed one of the counts that Marquez and Doe brought which related to discrimination under the Montana Human Rights Act. 

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

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.