Montana judge hears arguments in case over new birth certificate law - Independent Record

In court Wednesday, the state defended a requirement for transgender Montanans to have surgery and then petition a judge in order to update the sex on their birth certificate, while the ACLU of Montana said the law is unconstitutional and should be blocked while their lawsuit progresses.

In July, the ACLU sued the state on behalf of two transgender Montanans. Earlier in the year, the state Legislature passed Senate Bill 280, which undid a previous process set out by the state health department under the prior administration that allowed Montanans to update their birth certificates by submitting a form.

Republican state Sen. Carl Glimm's legislation requires a person submit to a court information showing they have had gender-affirming surgery in order to make a change. Glimm said he brought the bill because he opposed the process the previous administration used to update birth certificates and because he was concerned over the accuracy of state records. Those opposed to the legislation said it would put transgender Montanans at risk if they did not have documents that corresponded to their gender, opening them to attacks and discrimination, and that most transgender Montanans do not have surgery.

The lawsuit was filed on behalf of Amelia Marquez, a trans woman who lives in Billings, and a trans man identified as John Doe in court proceedings. It is against the state of Montana; Gov. Greg Gianforte; the state Department of Public Health and Human Services, which handles birth certificates; and department Director Adam Meier.

In court, Kathleen Smithgall, assistant solicitor general, argued that people do not have a constitutional right to update their birth certificates. Smithgall also called the new law a process to make the update and said there are other processes for people who want to update things like paternity information. Smithgall argued the process was voluntary and that a judge could issue an order to keep a person's medical information private.

"SB 280 simply does not prohibit (people) from making any any medical decision. It simply outlines the process for an individual to amend his or her birth certificate," Smithgall said. " ... There is no (constitutional) right to change one's birth certificate, and the Legislature establishing the process for amending a birth certificate is not unreasonable or arbitrary."

Akilah Lane, staff attorney for ACLU of Montana, said the state doesn't make clear what surgeries would meet the law's requirement and that surgery is not medically necessary or possible for many people because of factors such as cost, time away from work, medical recommendations and more. Lane also said the requirements of transgender Montanans was more of a burden than for others seeking to update their birth certificates.

"It is not the state's place to either limit, coerce or otherwise intervene with a person's course of medical treatment in order to receive that state benefit, especially by requiring something as risky as surgery," Lane said. " ... This law was borne of anti-transgender animus and medical falsities intended to humiliate, exclude and target a group of people who already regularly experienced discrimination and hostility."

Yellowstone County District Court Judge Michael Moses did not indicate when he would rule on the ACLU's request to stall the law or the state's motion to dismiss the case.

On the motion to dismiss, the state argued the plaintiffs lack standing and aren't making a claim that a judge can grant relief for. The ACLU disputed those statements, saying Marquez and Doe face irreparable harm if the law isn't blocked.

source: https://helenair.com/news/state-and-regional/govt-and-politics/montana-judge-hears-arguments-in-case-over-new-birth-certificate-law/article_c49ed487-e624-5ac9-8bd1-f331db75ccdd.html

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