Montana sued over law that makes it harder for trans people to change birth certificates

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A new law requires transgender Montanans to have gender confirmation surgery before they're allowed to change their birth certificates.

A transgender man and transgender woman, John Doe and Amelia Marquez, are challenging a new Montana law that makes it difficult for them to change the gender marker on their birth certificates.

The American Civil Liberties Union filed a lawsuit on their behalf on Friday.

Montana Gov. Greg Gianforte (R) signed S.B. 280 in April. The law forces transgender people to undergo surgery in order to change the gender on their birth certificate.

"The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed by surgical procedure," the law states.

Montana has enacted many other anti-LGBTQ laws this year, including a bill prohibiting transgender athletes from playing on the team of their gender, legislation that makes it more difficult for students to learn about LGBTQ people in the classroom, and a bill that LGBTQ groups say makes it easier for businesses to discriminate without legal consequences.

Previous birth certificate regulations, under former Gov. Steve Bullock, made it easier for transgender people to change the gender marker and didn't require surgery.

In Friday's complaint, Doe and Marquez say that the new law makes it "difficult if not impossible" for transgender people in the state to change their birth certificates. They also claim the law doesn't state what evidence is required to prove that someone had surgery, and does not describe "the nature of the surgery required."

The two are seeking relief under the Montana state constitution, which gives them a right to privacy, protects individual autonomy in medical decisions, and a right to due process, which they say is violated because the law is so vague that it's unclear how a person is expected to comply with it.

The complaint also notes that many transgender people cannot afford gender-affirming surgeries or take off time from work to get them. For some, it may not be medically advised that they get surgery, and for others, their insurance company may not even cover it.

The law does not provide medical or economic exceptions for people who may not be able to undergo surgery, it adds.

Some transgender people may not want to undergo surgery either. Doe, for example, said that he has had chest reconstruction surgery but doesn't want any additional procedures for the time being.

For her part, Marquez has said she can't afford it, can't take time off from work, and doesn't want surgery at this time. She also said she needs to change her birth certificate because she is scared of people reacting "negatively or even violently" to her presenting a document with a male gender marker.

Additionally forcing transgender people to abide by a one-size-fits-all requirement in order to change their gender marker, the complaint claims, is "medically irresponsible."

"Forcing a particular course of treatment, such as the gender affirming surgery the Act requires, without reference to the particular needs and circumstances of an individual patient is medically irresponsible," it reads. "In some circumstances, it may constitute medical malpractice."

Fourteen states and one U.S. territory currently require proof of surgery before an individual is allowed to change the gender marker on their birth certificate, according to the Movement Advancement Project.

Eight states and two territories also require transgender people to prove they have had surgery to get the correct gender markers for their driver's licenses.

In January, a federal court ruled that an Alabama policy that requires transgender people to get gender-affirming surgery to change the gender marker on their driver's licenses was unconstitutional. The state said those surgeries consisted of both "genital surgery and top surgery," lawyers who took on the case told NBC News. The court noted in its ruling that at least one surgery required by the policy "results in permanent infertility in 'almost all cases.'"

Gianforte has not yet issued a statement on the lawsuit.

Published with permission of The American Independent Foundation.