Health department will restrict birth certificate changes, citing controversial ’23 legislation

Editor’s note: This story has been updated with additional information and clarification.

The State of Montana has said that without a DNA test and an affidavit, residents can no longer change their birth certificates.

Meanwhile, nearly immediately after the new rule was announced, at least one group said it will challenge the measure in court.

This marks another change in the Treasure State’s approach to changing birth certificates, which has been the subject of multiple legal challenges and bills in the Legislature for the past four years.

The Montana Department of Health and Human Services announced on Tuesday that it was implementing a rule that aligns with Senate Bill 458, which narrowly defined sex as binary — male or female. However, that bill is under a legal challenge.

Nevertheless, DPHHS leaders said there will only be two scenarios in which residents can legally change a birth certificate. The first is when there’s a “scrivener’s error” — when the sex on the birth certificate was a result of a clerical error. Any other change to a Montana birth certificate will only be done with a DNA test and an affidavit from that testing company.

While the state said the notification to the rule enforcement was just keeping Montanans appraised of how the department was processing requests, the ACLU of Montana said it will be going to court over the rule. The non-profit said an open lawsuit against the sex definition bill may impact the rule’s future as well.

A transgender advocate in the state said the state should be focused on other issues, and leave transgender people alone.

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” Brereton said.

Not the first legal challenge

Montana residents can be forgiven for being confused about how to change a birth certificate in the state. Before 2021, changing the sex designation required a one-page form.

But the 2021 Legislature passed a law that would have required an unspecified surgery and doctor’s affidavit. That rule was the subject of a two-year court battle in Yellowstone County. A judge in 2023 struck down the law as violating the state’s Constitution, and held the state in contempt for not following his orders.

After the 2021 law was wiped off the books, it created an opening for the state department to rewrite the rule. DPHHS crafted the new rule to conform with Senate Bill 458, which is also under a court challenge because it narrowly defines sex as binary.

“While DPHHS adopted the 2022 rule pursuant to independent statutory authority, implementation of the rule aligns with the requirements of SB 458,” the department said Tuesday.

Alex Rate, lawyer with the ACLU of Montana, told the Daily Montanan Tuesday the organization intends to fight the department on the implementation of it.

Rate said the same rationale underlying the court’s order taking down the original rule as unconstitutional supports that “this new rule is likewise unconstitutional and should be struck down.”

“We’ll be back in court on the 2022 rule, no doubt,” Rate said.

The ACLU filed one of the two open lawsuits against the bill defining sex in state law. Rate said with or without that law, the department will likely rely on the 2022 rule to continue to bar transgender Montanans from changing their documents.

Transgender advocate and lobbyist Shawn Reagor speaking for himself Tuesday said the state has “real issues” to worry about, like Montanans losing Medicaid for one, and instead continue to “target a community to try and gain political points where there is no issue.”

“LGBTQ folks in Montana have been here for hundreds of generations. We’re going to continue to be here, no matter what the state does. But the fact that they try and continue to harm us to gain political points is completely horrific,” Reagor told the Daily Montanan.

DPHHS said Tuesday all requests for birth certificate sex marker changes received by, or pending with, the Office of Vital Records from Oct. 1, 2023 onwards that are still pending “will be evaluated and processed in accordance with the criteria set forth under the 2022 rule.”

“This implementation date coincides with the effective date of Senate Bill (SB) 458, enacted into law during the 2023 Legislative Session,” the department said.