Clarity sought in transgender birth certificate ruling

June 9, 2022 GMT
FILE - Demonstrators gather on the steps of the Montana State Capitol protesting anti-LGBTQ+ legislation on March 15, 2021, in Helena, Mont. The ACLU of Montana is asking a judge, Tuesday, June 7, 2022, to clarify an order that temporarily blocked a law requiring transgender people to have had their sex changed by “surgical procedure” before they could change the sex listed on their birth certificates. (Thom Bridge/Independent Record via AP, File)
FILE - Demonstrators gather on the steps of the Montana State Capitol protesting anti-LGBTQ+ legislation on March 15, 2021, in Helena, Mont. The ACLU of Montana is asking a judge, Tuesday, June 7, 2022, to clarify an order that temporarily blocked a law requiring transgender people to have had their sex changed by “surgical procedure” before they could change the sex listed on their birth certificates. (Thom Bridge/Independent Record via AP, File)

HELENA, Mont. (AP) —

The ACLU of Montana is asking a judge to clarify an order that temporarily blocked a law requiring transgender people to have had their sex changed by “surgical procedure” before they could change the sex listed on their birth certificates.

The request was made Tuesday and came after the state issued an emergency order last month that denied birth certificate changes for people even if they have had gender confirmation surgery.

“To see a state agency, disregard another branch of government’s legal order felt disappointing to say the least,” said Amelia Marquez, a transgender woman and one of the plaintiffs in the lawsuit challenging the 2021 law. “I would like to see our state do better and protect me and other Montanans’ rights rather than continuing to fight to trample on them.”

District Judge Michael Moses in April ordered the state to return to its previous rule, adopted under a Democratic administration in 2017, while the legal challenge played out. The previous rule allowed transgender people to submit signed affidavits to change the gender on their birth certificates.

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Moses said the law passed by the 2021 Legislature was unconstitutionally vague because it did not specify what surgical procedures were required.

About a month later, the state health department said Moses’ April 21 ruling put them in “an ambiguous and uncertain situation,” leading the agency to issue a temporary emergency order saying people’s sex on their birth certificates could not be changed at all, unless there was a clerical error.

Only Tennessee, Oklahoma and West Virginia have similar sweeping prohibitions against changes to birth certificates, according to the civil rights group Lambda Legal. Bans in Idaho and Ohio were struck down in 2020, according to the group.

The ACLU on Tuesday filed a motion asking Moses to clarify his preliminary injunction and possibly hold the state in contempt of court. ACLU lawyers also asked for the emergency rule to be declared unlawful.

“The state’s willful refusal to comply with the order only serves to hurt transgender Montanans,” said Akilah Lane, staff attorney with the ACLU of Montana said in a statement. “And it demonstrates that in fact the purpose of the law all along was to hurt transgender Montanans.”

Under Montana law, emergency or temporary rules can only be issued when state agencies find “an imminent peril to the public health, safety, or welfare.”

The text of the emergency rule said it was adopted “to govern the procedures of the Office of Vital Records.”

“The department has an obligation to ensure the accuracy of vital records,” the agency said at the time.

Marquez and a transgender man identified in court documents as John Doe filed their lawsuit in July 2021 challenging the law that made it more difficult, if not impossible, for transgender residents to change their birth certificates.