Two transgender women are suing Montana and multiple state agencies because of the government’s rule that prevents people from altering their sex designation on their birth certificates. The lawsuit's plaintiffs argue that this restriction exposes trans individuals to discrimination and harassment.
The lawsuit is challenging a 2022 regulation from the Department of Public Health and Human Services (DPHHS), which stipulates that the department will only modify gender on birth certificates if an individual's sex assigned at birth was mistakenly recorded. DPHHS officials stated that they would not change birth certificate gender markers based on "gender transition, gender identity, or change of gender."
In February 2024, DPHHS stated that any changes to birth certificates would adhere to the provisions of Senate Bill 458, which asserts that there are only two biological sexes. The sexes are determined by biological and genetic factors without considering an individual's psychological, behavioral, social, or chosen gender experience.
The lawsuit claims that these two interconnected provisions have introduced discriminatory definitions into Montana law. It argues that SB 458 is scientifically incorrect and inappropriately aims to narrow the definition of sex without legal, medical, or scientific justification, as sex comprises a complex set of biological, psychological, and social factors, including but not limited to the behavioral or subjective experience of sex.
Formerly, Senate Bill 280 in the state mandated individuals seeking to modify the gender on their birth certificates to provide proof of a surgical procedure. However, a state district court blocked SB 280 in April 2022 and directed DPHHS to restore its previous procedures from 2017, which facilitated easier changes for trans individuals. Despite this court order, DPHHS disregarded it.
Additionally, the plaintiffs accused Montana's Department of Justice and Attorney General Austin Knudsen of implementing a new rule at the Motor Vehicle Division (MVD) that revoked a previous policy allowing trans people to modify the gender marker on their state-issued identification cards and driver's licenses with a doctor's letter confirming their sex change process status.
This year, Knudsen and the state DOJ altered MVD's policy to only permit gender marker changes with an amended birth certificate. Given that the state no longer enables trans individuals to modify their birth certificates, they must now possess ID cards displaying their assigned gender at birth, which often conflicts with their gender identity and expression.
Changing the gender on a birth certificate is the initial step toward modifying gender markers on government-issued ID documents such as driver's licenses and passports. If a person's gender marker does not align with their gender identity, it effectively reveals a person as transgender, potentially resulting in challenges accessing services and facing harassment and violence.
The plaintiffs have requested the court to stop the mentioned policies. The two plaintiffs say they speak for all transgender people born in Montana who currently wish, or in the future will wish, for the sex designation on their identity documents to be changed. They are being supported by the American Civil Liberties Union (ACLU), the ACLU of Montana, and the law firm Nixon Peabody LLP. The Hill reported.
“After finally being able to live openly as the woman I know I am, I am frustrated that my birth state, Montana, is making me carry a birth certificate that wrongly shows my sex as male,” plaintiff Jessica Kalarchik, a U.S. Army veteran, said in a statement. “I am being made to use a birth certificate that is inaccurate and that puts me at risk of discrimination and harassment whenever I have to show it.”
“I live openly as a woman,” Kalarchik added. “I am treated as a woman in my daily life, and there is no reason I should be made to carry a birth certificate that inaccurately identifies me as male.”
The lawsuit claims that about 3,400 trans individuals above 13 years old live in Montana.
