State wants to make temporary rule for birth certificates permanent

Residents couldn’t change sex on a birth certificate unless it was a clerical error or a DNA test proves a mistake

By: - June 14, 2022 5:11 pm

Photo illustration (Getty Images)

The Montana Department of Public Health and Human Services has issued a proposal for a permanent rule, along with a public comment period, on how the state plans on handling sex designation on birth certificates.

In a nine-page administrative rule proposal published on Friday, the Health Department said after further review and consideration of the evidence presented in court and after reading a judge’s decision, it had erred, using sex and gender interchangeably. Now, with the evidence the department said it gleaned from the court, it will propose making sex designations on Montana birth certificates only changeable in case of a clerical error, or when DNA testing proves that sex is wrong on the document.

The rule is part of a larger ongoing battle between a group of plaintiffs, represented by the American Civil Liberties Union, and the state’s conservative administration and Legislature. In April, a district court judge issued a temporary injunction against Senate Bill 280, which changed how the state processes sex designation changes on a birth certificate. Yellowstone County District Judge Michael Moses ruled that new law, passed in 2021, was unlawfully vague by requiring surgery to change a sex designation on a birth certificate, even though the law didn’t specify what kind of surgery would suffice.

The new permanent rule would be in place until the conclusion of the ongoing legal battle. It would largely mirror the current emergency rule, which the department issued after it claimed it previously rescinded a 2017 rule that allowed citizens to change the sex designation on a birth certificate with just a one-page document. DPHHS Director Adam Meier explained in the details of the new permanent rule that the department had eliminated the 2017 rule when the legislature passed SB280, and when Moses issued the injunction, it left the department without any rules or guidance.

“There is currently no non-enjoined regulatory mechanism by which the department can accept and process birth certificate sex identification amendment applications,” the department said.

Previously, the ACLU told the Daily Montanan that the 2017 policy, implemented during former Gov. Steve Bullock’s tenure, was repealed through the language of SB280, and Moses’ order prohibited any part of SB280 from being enforced. The ACLU argues that should leave the old policy in place, and the organization has filed a motion requesting further clarification from Moses.

The ACLU declined to comment on the proposed rule Tuesday when contacted by the Daily Montanan.

The public hearing for the new proposed rule will take place via Zoom video conferencing at 9 a.m. June 30.

Sex vs. gender

The department in the nine-page document outlining the rule change said that it had been swayed by the evidence presented in court. Specifically, it said that Montana’s birth certificates had always retained the sex designation on a birth certificate, but not gender. And it points out that those two things are different, and important.

“The court’s finding that ‘no surgery changes a person’s sex’ has caused the department to consider the issue,” the DPHHS said. “Thus, as some scientists have noted, ‘human sex is an observable, immutable and important biological classification;’ it is biological (and, thus, genetic), binary and immutable. The department agrees.”

However, the department said the vital statistics are not concerned with a persons “gender identity.”

“Because ‘sex’ and ‘gender’ are different concepts, the department would not read the statutory provisions concerning birth certificates or records of births as including ‘gender’ in the requirement to record the sex of the person,” the department stated. “This interpretation is consistent with context: The birth certificate generally records only facts that are known (or knowable) at the time of the person’s birth. Sex is one of those facts: A person’s sex can be determined by observation, examination or test — at the time of birth. Gender/gender identity, as a social, psychological, and or cultural construct, cannot.”

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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.