Judge blocks Montana's transgender birth certificate law

A Montana judge has temporarily blocked enforcement of a law that made it difficult for transgender people to change the sex on their birth certificates

ByAmy Beth Hanson Associated Press
April 21, 2022, 10:13 PM

HELENA, Mont. -- A Montana judge on Thursday temporarily blocked enforcement of a law that required transgender people to have undergone a “surgical procedure” before being allowed to change their sex on their birth certificates.

The law was part of a growing list of Republican-controlled states including Alabama that have moved to restrict transgender rights as they gain more visibility in culture and society.

In Montana, District Judge Michael Moses of Billings ruled the law is unconstitutionally vague because it does not specify what surgical procedure must be performed. The law also required transgender people to obtain a court order indicating they'd had a surgical procedure.

Because he could grant the temporary injunction based on the vagueness issue, Moses said he did not further analyze the constitutionality of the law.

“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 ACLU of Montana.

The plaintiffs — Amelia Marquez of Billings and a transgender man who is not identified in court records — wanted to change the sex on their birth certificates without undergoing costly surgical procedures.

Both argue having a birth certificate that does not match their gender identity puts them at risk of embarrassment, discrimination, harassment or violence if they are asked to provide their birth certificate.

Marquez has undertaken hormone therapy and legally changed her name. Having a birth certificate that does not match her gender identity puts her at higher risk of harassment, hostility and discrimination, the lawsuit said.

“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,” Moses wrote. “Instead, gender-affirming surgery aligns a person’s body and lived in experience with the person’s gender identity, which already exists.”

The temporary injunction remains in place until the full case is decided.

Before the 2021 Legislature passed the challenged law, transgender residents seeking to change their birth certificate needed only to provide an affidavit to the state health department. The temporary injunction puts that process back in place.

Republican state Sen. Carl Glimm, who sponsored the legislation, has argued that the health department overstepped its authority in changing the designation on a birth certificate from “sex” to “gender” and then setting rules for how it could be changed.

The office of Attorney General Austin Knudsen, which is defending the state in this case, did not immediately respond to an email seeking to learn if the state planned to appeal the injunction.

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