HELENA — During a public hearing Thursday, almost 100 Montanans said they opposed a state health department rule that prevents transgender people from changing the sex on their Montana birth certificates.
The new proposed rule mirrors a temporary emergency rule the Montana Department of Public Health and Human Services issued in May, which said DPHHS would not amend the sex marker on a birth certificate based on “gender transition, gender identity, or change of gender.” The emergency rule will expire in September. To keep the same policy in place, DPHHS must go through the normal rule making process, and the almost three-hour long public hearing was a required step in adopting a new administrative rule.
Two people spoke in support of the rule during the hearing. More than 90 spoke in opposition. Those who opposed the rule included transgender Montanans, as well as the parents, legislators, teachers, friends and doctors of transgender Montanans.
Gwen Nicholson said the rule change halted them as they were in the process of changing their name and gender.
“I feel that my civil rights have already been unduly limited," Nicholson said. "And that the risk of discrimination and physical harm that I face in my life has been elevated.”
The emergency rule was issued after an April order from Yellowstone County District Judge Michael G. Moses stopped the Montana Department of Public Health and Human Services fromenforcing a 2021 law, which made it harder for transgender Montanans to swap an “F” on their birth certificate for an “M”, or vice versa. The judge’s order came out of a lawsuit brought against the state by two transgender Montanans, who are represented by the ACLU.
If adopted, the rule will stay in place unless a court reinstates 2021 state law. Under the 2021 law, transgender Montanans needed to show proof they’d undergone surgery and gotten a court order before the state would swap their birth certificate sex or gender marker.
When Moses issued the preliminary injunction, the ACLU said the state was supposed to return to the status quo, which the judge’s order identified as the 2017 law. In contrast to the 2021 law, the 2017 method required just a form and an affidavit from the person seeking the fix.
In the Moses order granting the preliminary injunction, he said, "transgender people who are denied accurate birth certificates are deprived of significant control over" how they disclose their transgender identity. A mismatch between a person's gender identity and the information on their birth certificate also subjects transgender people to discrimination and harassment at work, at the doctor's office and in interactions with government officials, the order said.
"A mismatch between someone's gender identity and the information on their birth certificate may even subject them to violence," according to the order.
Zoe Barnard, former administrator of DPHHS' Addictive and Mental Disorders Division, said she fears for a transgender youth in her family. Barnard said she finds herself wondering if her family member should move out of Montana for their own safety. She invoked the name of Matthew Shepard, a gay man who was beaten and left to die in 1998 in Wyoming.
“I worry about the way this is going,” Barnard said.
University of Montana Professor Annie Belcourt said her family was devastated by the attacks on her transgender child’s rights. She called the series of bills in the last session as well as the proposed rule “state-sponsored hate.”
Magdalen Marmon, a Missoula middle school teacher, said she’s watched the faces of her transgender students when they are handed a report card with the incorrect name and gender.
“I have seen that look of hurt, it’s like a little gut punch to a child. It’s a small gut punch, they can take it once or twice. How many times per year are we going to ask them to take that gut punch," she said.
She asked the state not to force those students to take those punches. Because she’s also seen the light in her students’ eyes when they are recognized for their gender.
Ryan Kellan Jean from Florence was in the last two dozen or so to speak. Jean identified as transgender and he gave a blunt comment about the potential outcome if DPHHS was to adopt the rule.
“I want DPHHS and this administration to understand that by limiting the rights of trans, nonbinary and two spirit Montanans, people will die,” Jean said.
In an emailed response, DPHHS Spokesperson Jon Ebelt said the health department “will decide what action to take with respect to the proposed rule after close of the public comment period and review of the comments.”
People can submit public comment on the new rule until 5 p.m. Friday, July 8. Those comments can be sent to Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210, or emailed to dphhslegal@mt.gov.
