At age 10, Susan Howard knew she was a girl, even though her birth certificate said otherwise. It wasn’t until last year, at age 62, that a Montana resident came on the condition of becoming a transgender.
Howard underwent hormone therapy, underwent gender-confirmed surgery and began changing his name and gender in official documents. “It’s been a godsend for me,” Howard said. “I feel very right and comfortable with myself for the first time in many ways.”
He was able to change his social security card, driver’s license and pension account. But he has not been able to change an important part of his personal identity. “Everything has changed except my birth certificate,” Howard said. “It simply came to our notice then. Everyone else has admitted my gender, but they won’t. “
A string of legislation and administrative actions has made Montana one of four states where it is almost impossible for transgender people to amend their birth certificates.
Montana health officials defended the restrictions as a way to preserve the accuracy of important records. LGBTQ + lawyers say it deprives transgender people of their dignity and denies them equal protection under the law.
In June 2021, the American Medical Association adopted a policy that would support the removal of sex titles on publicly available birth certificates to protect the privacy of the public and prevent discrimination. The AMA said that under this policy, a person’s gender title would be collected at birth and submitted for medical, public health and statistical use.
The AMA already had a policy of recognizing the “medical spectrum of gender” and the idea was that everyone had the right to determine their gender identity and gender title in official documents.
AMA’s Montana representative said. Nicole Clark says the Montana Medical Association has adopted the AMA’s birth certificate policy.
In most states, the process of updating their documents is relatively easy for transgender people without the administrative hurdles created by Montana. Three exceptions, in addition to Montana, include Tennessee, which has a law that prohibits trans people from modifying their birth certificates. (The state has been fighting a lawsuit challenging that policy since 2019.) In Oklahoma, Governor Kevin Stitt signed an executive order in November barring transgender people from changing their birth certificates. And in West Virginia, the Circuit Court had previously approved changing gender surnames on birth certificates, but a 2020 state Supreme Court ruling said they could not order the state Department of Health to do so.
Katherine Oakley, director of the state legislature and senior counsel for the Human Rights Campaign, an LGBTQ + advocacy group, says denying anyone the opportunity to change their birth certificate denies them “the ability to be a full, full member of society.”
“It ignores all modern medical knowledge about what is meant by transgender and goes against the American Psychological Association, the American Medical Association, the National Association. [of] Social workers, who say it is in their best interest to confirm someone’s gender identity from a health standpoint, ”Oakley said.
In April 2021, Montana Governor Greg Gianforth signed into law Senate Bill 280, which states that the state Department of Public Health and Human Services can change a birth certificate only after receiving a court order that the person’s gender has been surgically altered.
The law replaces a 2017 rule that requires transgender people to change their birth certificates to confirm their gender. This rule did not require gender-confirmation surgery or other surgeries, which may be unnecessary or cost-prohibitive.
The Montana State, representing the American Civil Liberties Union, has sued and challenged the 2021 Act on constitutional grounds, arguing that it is vague and violates the right to privacy and equal protection.
In April 2022, Yellowstone County District Court Judge Michael Moses temporarily barred the Department of Health from enforcing the law while the case was ongoing. Transgender advocates hoped the order would restore the 2017 rule and allow transgender people to amend their birth certificates by filling out a form again. But the health department did not agree.
A month later, the Department of Health issued an emergency rule limiting more than SB 280. The rules state that Montanans can correct birth certificates only in cases where a clerical error is involved or when people use DNA testing to prove that their gender has been incorrectly identified at birth. “Sex is different from sex and it is an unchangeable genetic fact, which cannot be changed even through surgery,” the rule reads.
The state Department of Health is seeking to keep the new rule in place until Moses ’order in the 2021 Act comes into force.
Health Department spokesman John Abelt said the judge’s order created a regulatory gap for processing birth certificates that needed to be filled. “There was no rule where the department could go back. And the department has an obligation to ensure the accuracy of vital records, ”Abelt said in an email.
Montana’s ACLU has submitted a proposal to Moses to clarify the requirements of the order and instruct the Department of Health to follow further approved 2017 rules.
“It’s very dangerous to leave transgender Montanaans without any way to access a valid, usable birth certificate,” said ACLU Attorney Malita Picasso. “It’s hard to say how extreme this move will be.”
On May 18, a few months after Howard began the process of changing his birth certificate, he received a judge’s order confirming that his gender had been surgically changed. Following the requirements set out in the 2021 Act, he sent the documents to the Department of Health by certified mail two days later. He had hoped for final approval on May 23, but that became the day the emergency rule went into effect.
After hearing nothing for a few days, Howard called the Department of Health’s Office of Vital Records. It said her form had been found but her gender could not be changed on her birth certificate despite a court order under the new rules. Howard was told that the state was not processing any gender reassignment on the birth certificate.
“I don’t know how to explain how frustrating it was at that moment,” Howard said. “It just felt awful.”
Dr. Carl Stride Jr., an assistant professor at the Boston University School of Medicine and lead researcher at the Boston Medical Center’s Center for Transgender Medicine and Surgery, says birth certificates do not reflect the reality of “gender identification”. ”Because there are several chromosome variations in addition to XX and XY.
Stride, who is also a primary care physician, says stress around identity can negatively affect a person’s health, leading to “significant mental health and emotional distress in the long run.”
Updating a birth certificate does not change the previous public health statistics that have already been reported, he added.
According to UCLA’s Williams Institute, which studies sexual orientation and gender identity law and public policy, an estimated 3,900 transgender people 13 years of age or older live in Montana. Howard is one of those people.
Before he moved, there were times when Howard didn’t want to live. But now she loves to feel free, waiting every day.
“I can’t think of any other way to define myself as a person. I’m a transgender woman living her life at just 63 years old, ”Howard said. “What’s the big deal if I want to change my gender identifier? Why does it bother you when I change my gender marker? I’m not changing you. I just don’t understand the animosity. “
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