DPHHS adopts rule change on amending gender markers on birth certificates

By: - September 9, 2022 5:28 pm

A large group gathers at the Montana Capitol on March 15, 2021 during a LGBTQ rally (Photo by Eric Seidle for the Daily Montanan).

The state health department has adopted a proposed rule change that bars transgender Montanans from being able to update the gender marker on their birth certificate.

The rule change is a result of the Department of Public Health and Human Services’ enforcement of Senate Bill 280, which passed in the 2021 legislative session and said Montanans can only update the gender marker on their birth certificate after a surgical procedure and court order.

The ACLU challenged the law, suing the state and alleging the law violated transgender Montanans’ right to equal protection, privacy and due process. A Yellowstone County district judge had ordered SB280 temporarily enjoined. The case will be in court again next week.

DPHHS argues the new rule change is consistent with the preliminary injunction issued by the Thirteenth Judicial District Court.

The formal adoption of the rule change comes after a public hearing earlier this summer where opponents, who greatly outnumbered supporters, said the change was harmful to people in the trans community.

At the hearing, Montana resident Gwen Nicholson expressed frustrations over being unable to update a birth certificate. She said the rule change happened just as she was finishing the process of changing her name and gender legally, and the required court order was “denied and ignored.”

“I feel that my civil rights have already been unduly limited and that the risk of discrimination and physical harm that I face in my life has been elevated because of a discriminatory rule that was adopted in direct contravention of the will of the people, legislative process and the judicial process,” Nicholson said.

In response to comments surrounding concerns this rule change would increase suicide rates among transgender people in the state, the Health Department said it does not believe there is scientific evidence that the failure of birth certificates to reflect transgender individuals’ gender identity leads to an increase in suicide in the transgender community.

“The department acknowledges that there is some evidence that, for example, transgender youth are at higher risk of suicidal ideation and suicidal attempts. However, as one analysis noted, ‘caution is needed when interpreting these data because they do not show causality or directionality,’” the rule change announcement read.

The response went on to say that people who identify as transgender and have gender dysphoria “have co-existing mental or psychological problems or disorders, which make it difficult to establish causation or to attribute adverse mental health outcomes to their gender dysphoria or to the fact that their birth certificates do not reflect their gender identity.”

The rule change was signed by DPHHS attorney Robert Lishman and DPHHS Director Charles Brereton and certified by the Secretary of State Christi Jacobsen on August 30. The rule change goes into effect Sept. 10.

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.