A new rule could make it easier for transgender and intersex Montanans to correct the gender marker on their birth certificate.
The Department of Public Health and Human Services hosted a public hearing on Thursday regarding the proposed changes, which would no longer require transgender people to provide a court order saying their sex was changed by a surgical procedure. The rule change also adds a definition of "intersex."
DPHHS said the change would bring Montana into line with other states. Those who supported the measure said it would reduce barriers for transgender and intersex people while opponents said it’s a matter that should be decided by the Legislature.
Rep. Kim Abbott, D-Helena, testified in support of the changes on behalf of the Montana Human Rights Network and said the existing rules act as a barrier. The idea that transgender people must undergo surgery to "correct," a term preferred by advocates to "change," their gender is outdated and the new rule doesn’t strictly define gender transition. A rule requiring people to get a court order saying their sex was changed is an invasion of privacy since judges aren’t required to clear a courtroom beforehand, Abbott said.
“It’s good for trans Montanans as they pursue normal day-to-day life,” Abbott said. “To have that ID properly reflect who you are.”
Under the new rules, people have three ways of correcting their gender, with all three requiring a sworn affidavit attesting to the facts supporting the change. People could submit a gender designation form certifying they have undergone gender transition or have an intersex condition, submit a government issued identification displaying the correct gender or submit a court order.
As the rule stands now, many transgender Montanans can’t get their birth certificates updated to accurately reflect their gender, which often results in contradicting documents. John Lovi, a retired lawyer who represented transgender people trying to change their name or birth certificate, said consistent and accurate documentation can keep transgender people from being outed.
“This rule reduces the fear and anxiety that many intersex and trans individuals feel when going about activities others of us would find ordinary,” Lovi said.
The definition of “intersex condition” will also reduce barriers to correcting a birth certificate. The department defines an “intersex condition as a person who is “born with a variation of chromosomes, gonads, sex hormones, or reproductive anatomy that is incongruent with typical notions of female or male bodies.”
The rule was supported by nearly 30 people including Rep. Moffie Funk, D-Helena, Rep. Mary Ann Dunwell, D-East Helena, ACLU Montana, The Pride Foundation and Montana Women Vote.
The six people who testified in opposition to the rule said it is something that should be decided by the Legislature.
Bowen Greenwood, with the Montana Family Foundation, said the organization doesn’t oppose the addition of a definition of intersex, but thinks the rest of the rule shouldn’t be adopted. Greenwood opposed swapping the word “sex” for “gender” in the new rule.
“The question is does an existing definition of gender even cover the ways in which gender is used in the modern world?” Greenwood said.
Greenwood also asked if there’s a definition of gender transition proposed or if a person could change their gender more than once.
“There’s all these questions,” Greenwood said. “It would be better to allow the people of Montana speak through their representatives.”
The Montana Family Foundation is in the process of collecting signatures for a ballot initiative it proposed to require people to use a bathroom or locker room designated for their sex at birth. It would apply to government buildings and public schools.
ACLU Montana is suing to keep the initiative off the ballot. Missoula has joined the lawsuit and Bozeman is considering joining.
The Montana Family Foundation supported a similar bill during the 2017 Legislature which failed to pass.
The department said some of the questions regarding definitions proposed by Greenwood are loose by design.
Nick Domitrovich, with the department's office of legal affairs, said the proposed rule does not define gender transition, which is in line with language in the Affordable Care Act, the Office of Civil Rights’ interpretation of discrimination under the Civil Rights Act and other federal guidance. That language allows gender to be determined by the individual’s own internal sense of gender. The rule allows people to determine whether they have transitioned and complete the affidavit attesting to that fact, Domitrovich said.
The Montana Vital Records Act, which is part of Montana law, doesn’t provide direction on changing gender or sex on a birth certificate. Instead, it says the department shall “promulgate rules necessary to implement this chapter.” DPHHS is not allowed to make rules that conflict with existing law or go beyond legislative intent.
Domitrovich said it’s appropriate for the department to respond to intersex or transgender individuals who have requested a correction and stay consistent with federal case law regarding constitutional rights of LGBTQ people even if Montana’s laws haven’t changed.
“(The rule) provides contemporary guidance to the public how to change the gender designation on a birth certificate without requiring unnecessary and costly legal or medical intervention,” Domitrovich said.
DPHHS is taking public comment until Oct. 20. Afterward, the department will issue a response and potentially make changes to the rule. Then the department will issue an adoption notice and the rule will become effective after a statutory period of time.