transgender ID law

Transgender ID law: The law prohibits transgender people who do not want or cannot afford sex confirmation surgery from obtaining accurate birth certificates, the lawsuit says.

Demonstrators gathered on the steps of the Montana State Capitol to protest anti-LGBTQ legislation in Helena, March 15.

Two Montana transgender people filed a lawsuit against the state Friday over a new law that requires transgender people who want to change their gender identity on their identification documents to prove they have undergone genital surgery.

The law, signed by Republican Greg Gianforte in April, states that the sex on a birth certificate can only be changed if the Montana Department of Health and Human Services “has obtained a certified copy of a court order stating that the sex of a person born in Montana has been changed by surgery.”

Montana residents Amelia Marquez, a transgender woman, and John Doe, a transgender man, argue in their lawsuit that the measure violates their constitutional rights to privacy, equal protection of the law and due process, according to a statement from the American Civil Liberties Union, which represents the plaintiffs along with the ACLU of Montana and Nixon Peabody LLP.

Marquez, who has lived in Montana her entire life, has undergone hormone therapy and counseling, but cannot afford the surgery required by the new law, said the lawsuit, which was filed in Montana’s 13th Judicial District Court and names Montana, Gianforte, the Montana Department of Health and Human Services and State Health Department Director Adam Meyer as defendants.

“My failure to obtain a birth certificate that accurately reflects my female gender identity is a painful and stigmatizing reminder of Montana’s refusal to recognize me as a woman,” Marquez said in an ACLU statement. “In addition, the refusal to give me an accurate birth certificate exposes me to the risk of embarrassment or even violence every time I am required to produce my birth certificate because it incorrectly identifies me as male.”

Gianforte and Meyer’s offices did not respond to requests for comment.

Only 25 percent of transgender and gender-nonconforming people reported having undergone some form of transition-related surgery, according to a 2015 survey of transgender people in the United States. As a result, advocates say, laws requiring genital surgery make it impossible for most transgender people to change their gender markers on birth certificates or driver’s licenses.

Doe, the other plaintiff, has received some help with the transition, but does not want to have the additional surgeries that the law might require, the lawsuit says.

“If Doe had to produce his current birth certificate, it would force him to disclose himself, which is ‘unconscionable,'” Akila Lane, in-house counsel for the ACLU of Montana, said in a statement.

“In addition, requiring Mr. Doe to appear in court would result in significant emotional and financial burdens that are completely unnecessary,” Lane said. “Mr. Doe, Ms. Marquez and all Montana residents who want to correct the gender designation on their birth certificate should be able to do so without the undue burden created by this recent and inhumane law.”

The Montana law requires a person to disclose their private medical information in a public trial and, as a result, “deprives them of their right to equality and privacy in violation of the Montana Constitution,” the lawsuit says.

Before the governor signed the measure, the Montana Department of Health and Human Services used rules it introduced in December 2017 that did not require surgery or litigation, according to the ACLU.

In April, however, supporters of the surgical requirement said it would prevent people from accidentally changing their gender identity, the Montana Free Press reported, though advocates say it is not happening.

Republican Senator Carl Glimm, who introduced the bill, said on the Senate floor in early March that he believes birth certificates are a “fact,” the Montana Free Press reported. “When a person is born, you record where they were born, you record their weight, you record their sex. And that’s important information to document,” he said.

Montana is the only state that passed a law this year that makes it harder for transgender people to change IDs, according to the ACLU. In fact, most states are phasing out such restrictions and allowing transgender people to change their gender markers through self-attestation, which allows a person to decide for themselves which gender marker best reflects their gender identity.

Twenty-three states allow self-certification to change the gender marker on a birth certificate, with no surgery or court order required, according to the Movement Advancement Project, a nonprofit LGBTQ think tank. Fourteen states allow M, F or X, a non-binary gender marker, on birth certificates.

In the remaining states, the laws are piecemeal. Twelve states have rules that are unclear on surgical or clinical requirements and may require a court order. Fourteen states, including Montana, require proof of surgery, and one state, Tennessee, does not allow gender marker changes on birth certificates.

Courts have recently ruled in favor of transgender people in other states that have sued for laws similar to Montana’s. In January, a federal court ruled that an Alabama law requiring proof of surgery to change the gender marker on a driver’s license is unconstitutional.

In a statement to the ACLU, John Knight, senior attorney with the ACLU LGBTQ & HIV Project, said Montana has “decided to increase the intrusion of state bureaucracy into people’s lives,” despite a growing number of states that are lowering restrictions on changing gender markers.

“Courts and state legislators across the country are increasingly saying that these barriers to accurate identification are unnecessary and serve no purpose for government,” Knight said in a statement. “Transgender and non-binary people need recognition of who they are, not government permission for their lives.”

In late June, the State Department announced that non-binary, intersex and gender nonconforming Americans will eventually be able to choose a gender identity other than the traditional “male” or “female” on their passports. In addition, U.S. passport applicants will no longer be required to provide medical documentation if their gender identity does not match the gender marker on other identity documents.

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