Montanans looking to update their birth certificates face wait times up to 6 months

By: - September 22, 2022 5:09 pm

The state health department is again accepting applications from people who want to update the gender marker on their birth certificates following a court order this week.

However, the Department of Public Health and Human Services said it could take up to six months to process an application. 

Jon Ebelt, spokesman for the Department, did not say how much time it took before the issue landed in court, but he said the process is time consuming due to various factors, such as the complexity of the request and how much communication must occur between DPHHS and the requestor to clarify or correct information.

“The long-standing Vital Records policy is to process applications on a first come, first served basis. Applications already in the queue will be processed first to ensure fairness to the department’s customers,” he said in an email.

The Department did not respond to a question about how many applications were currently in the queue.

Monday, DPHHS said it would comply with an order from a Yellowstone County District Judge that required the department to reinstate a 2017 rule that allows for gender markers on birth certificates to be updated more accessibly through an online form — which the department put back on its website earlier this week.

In April, the judge had issued a preliminary injunction against Senate Bill 280, which said Montanans could only update the gender marker on their birth certificate after a surgical procedure and court order. But the department temporarily skirted the injunction by issuing an emergency rule.

The emergency rule made it nearly impossible to change a gender marker on a birth certificate by only allowing a change in the case of a clerical error or when DNA testing proves that sex is wrong on the document.

Until this week, however, DPHHS had not reverted to the 2017 rule. The change by DPHHS followed a bench ruling last week and written order this week by Judge Michael Moses, who said the department had tried to circumvent his order. SB280 and the emergency rule garnered much backlash from transgender Montanans and their allies, who argued the measures were discriminatory and would have negatively impacted transgender Montanans trying to align their birth certificate with their identity.

The ACLU of Montana and other plaintiffs sued. Alex Rate, the legal director for the ACLU of Montana, said he needs more information about the long wait times before any legal action is considered. In his order, Judge Moses indicated he would not be against holding DPHHS in contempt if they went against his order.

“If the delay is legitimate administrative reasons, which is hard to imagine, that’s one thing, but if it’s deliberate slow walking, that’s entirely different,” he said.

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Keith Schubert
Keith Schubert

Keith Schubert was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. Keith is no longer a reporter with the Daily Montanan.