Montana court halts law requiring surgery to change sex on birth certificate

A Montana court blocked a newly passed state law requiring surgery before allowing those born in the state to amend their birth certificates to align with their gender identity.

Yellowstone County District Court Judge Michael Moses issued a preliminary injunction Thursday halting enforcement of Senate Bill 280, a 2021 state law that raised the bar on amending the sex designation on birth certificates.

“Plaintiffs provided unrebutted evidence describing that neither gender-affirming surgery nor any other medical treatment that a transgender person undergoes changes that person’s sex,” he said. “Instead, gender-affirming surgery aligns a person’s body and lived in experience with the person’s gender identity, which already exists.”

The judge said the law failed to specify which surgeries would meet the law’s standard, given that “there are many types of surgery available to treat gender dysphoria including facial feminization, tracheal shave, vaginoplasty and phalloplasty.”

“The court finds that plaintiffs have established a prima facie case that SB 280 [is] impermissibly vague in all of its applications and thereby unconstitutionally violates plaintiffs’ fundamental right to due process because it is unconstitutionally void,” Judge Moses said.

Billings resident Amelia Marquez, one of two Montana-born individuals who sued the state, called the ruling a “huge win for all Montanans.”

“We are thrilled that the court recognized the substantial and unnecessary burdens this law places upon transgender individuals in violation of their constitutional rights,” said Akilah Lane, staff attorney at the American Civil Liberties Union of Montana, which filed the lawsuit with the law firm Nixon Peabody.

The state had previously required a court order affirming that individuals had undergone surgery before changing the sex designation on birth certificates, but in 2017, the state Department of Public Health and Human Services dropped the prerequisite.

Instead, the department allowed residents to amend their birth certificates by providing an affidavit affirming that they had undergone gender transition, prompting the state legislature to take action reverting to the “surgical procedure” standard.

The legislation said that “accurate vital statistics play an important role in society, and the rulemaking adopted in [the administrative rule] should have been contemplated in the Legislature rather than through DPHHS rulemaking.”

Kyler Nerison, Montana Justice Department spokesperson, said that Judge Moses has a history of blocking Republican-passed laws, pointed to his recent rulings on measures aimed at shoring up election integrity and placing medical safeguards on abortion.

“This is the same activist judge who previously blocked seven other laws that our state legislature and governor duly enacted just last year. The Montana judiciary is more liberal than even the Ninth Circuit,” said Mr. Nerison.

The judge’s order comes with the federal government and states increasingly loosening requirements on changing the sex marker on birth certificates and other government documents, a priority of the LGBTQ movement.

The ACLU said the case was brought by “Amelia Marquez, a transgender woman, and John Doe, a transgender man,” who argued that the law “makes it virtually impossible to correct the sex designation on their birth certificates.”

“Marquez and Doe’s case asserts that Senate Bill 280 (passed by the 2021 Montana Legislature) violates their constitutional rights to privacy, equal protection of the law and due process,” the ACLU said.

The court also denied the state’s motion to dismiss the case. The lawsuit was filed against the state, Republican Gov. Greg Gianforte and the public health department.