Judge pauses Montana’s enforcement of law that makes it harder for transgender residents to modify their birth certificates

By Devan Cole, CNN

Montana must pause its enforcement of a law requiring transgender residents to provide proof that they underwent a “surgical procedure” to change their sex in order to modify the sex designations on their birth certificates, a state judge ruled Thursday.

The preliminary injunction issued by Judge Michael G. Moses means that, for now, Montanans wishing to change the sex designations on their birth certificates can continue doing so by submitting to Montana’s Department of Public Health and Human Services “a completed gender-designation form attesting to gender transition or providing government-issued identification displaying the correct sex designation or providing a certified court order indicating a gender change.”

That process had changed last year when Republican Gov. Greg Gianforte signed into law SB 280, which effectively required transgender Montanans to undergo a “surgical procedure” if they wanted to amend their birth certificates’ sex designations to match their gender identity.

Two transgender residents sued, claiming the new law violates their constitutional right to privacy and due process, as well as the 14th Amendment’s Equal Protection Clause. They argued that the law was vague and didn’t adequately describe the types of medical procedures required to satisfy the state’s definition of a sex change.

“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. Therefore it is unclear what type of ‘surgical procedure’ will meet the requirements to change ‘the sex of the person born in Montana’ given plaintiff’s evidence that no surgery changes a person’s sex.”

He continued: “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.”

CNN has reached out to Gianforte’s office for comment.

“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, an attorney with the American Civil Liberties Union of Montana, which helped bring the challenge.

“The court’s injunction affirms the basis of our case: that SB 280 intentionally targets transgender people for unequal treatment because, as Judge Moses wrote, ‘only transgender individuals are subjected to these procedures and burdens in order to have a birth certificate that accurately reflects their gender,'” she added.

SB 280 is part of a broader effort by conservatives to make it more difficult for transgender Americans to change their birth certificates and other identification documents to match their gender identity. On Thursday, Oklahoma’s GOP-controlled legislature sent that state’s Republican governor a bill that would prohibit the state from allowing individuals to change the sex designations on their birth certificates to nonbinary.

Earlier this month, the US State Department began giving US citizens the option to select “X” when identifying their genders on US passport applications, joining several other countries that allow such a marker on passports.

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