(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Health department will restrict birth certificate changes, citing controversial '23 legislation – Daily Montanan [1] ['Nicole Girten', 'More From Author', '- February'] Date: 2024-02-20 In the latest turn in the years-long debate over how the state should handle requests to change the gender marker on birth certificates, the state announced Tuesday it will process applications under a department rule it says aligns with a 2023 law defining sex as binary in state code. While the state said the notification to the rule enforcement was just keeping Montanans appraised of how the department was processing requests, the ACLU of Montana said it will be going to court over the rule. The non-profit said an open lawsuit against the sex definition bill may impact the rule’s future as well. A transgender advocate in the state said the state should be focused on other issues, and leave transgender people alone. Under the rule, which has been protested by transgender residents as discriminatory, Montanans can only change the gender marker on their birth certificate if there was a data-entry error or if the gender marker was misidentified on the original certificate. Applications have to be submitted with documentation including a DNA test identifying the person’s sex along with an affidavit from the facility that conducted the test affirming its accuracy. The Department of Public Health and Human Services Director Charlie Brereton said in a statement Tuesday the notification from the department on the rule “serves to keep the public apprised of the law and what to expect from DPHHS going forward.” “DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” Brereton said. A Yellowstone County judge last summer struck down a 2021 law which would have required proof of a surgical procedure and a court order to change the gender marker on a birth certificate, finding it unconstitutional. The department was supposed to revert back to a 2017 rule for changing gender markers after the 2021 law was enjoined, but didn’t, and for that the judge also held the state in contempt of court. The preliminary injunction for the case had frozen the 2017 rule in place, allowing birth certificates to be amended. But the permanent injunction that concluded the case essentially unfroze the status quo– leaving the department able to enact the 2022 rule. The department under its rulemaking authority in 2022 passed the rule, citing the 2021 law, but Judge Michael Moses in the Yellowstone County case blocked its enforcement. Now, the department is citing a 2023 law, Senate Bill 458 sponsored by the same legislator– defining sex as a binary, as its impetus for enacting it. “While DPHHS adopted the 2022 rule pursuant to independent statutory authority, implementation of the rule aligns with the requirements of SB 458,” the department said Tuesday. “Recently, the Department has determined that enactment of SB 458, with the ending of the preliminary injunction in Marquez vs. State of Montana, et al., requires implementation of the 2022 rule.” Alex Rate, lawyer with the ACLU of Montana, told the Daily Montanan Tuesday the organization intends to fight the department on the implementation of the 2022 rule. Rate said the same rationale underlying the court’s order taking down the original rule as unconstitutional supports that “this new rule is likewise unconstitutional and should be struck down.” “We’ll be back in court on the 2022 rule, no doubt,” Rate said. The ACLU filed one of the two open lawsuits against the bill defining sex in state law. Rate said with or without that law, the department will likely rely on the 2022 rule to continue to bar transgender Montanans from changing their documents. Transgender advocate and lobbyist Shawn Reagor speaking for himself Tuesday said the state has “real issues” to worry about, like Montanans losing Medicaid for one, and instead continue to “target a community to try and gain political points where there is no issue.” “LGBTQ folks in Montana have been here for hundreds of generations. We’re going to continue to be here, no matter what the state does. But the fact that they try and continue to harm us to gain political points is completely horrific,” Reagor told the Daily Montanan. DPHHS said Tuesday all requests for birth certificate sex marker changes received by, or pending with, the Office of Vital Records from Oct. 1, 2023 onwards that are still pending “will be evaluated and processed in accordance with the criteria set forth under the 2022 rule.” “This implementation date coincides with the effective date of Senate Bill (SB) 458, enacted into law during the 2023 Legislative Session,” the department said. [END] --- [1] Url: https://dailymontanan.com/2024/02/20/health-department-will-restrict-birth-certificate-changes-citing-controversial-23-legislation/ Published and (C) by Daily Montanan Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/