Susan Howard, a 10-year-old girl, knew that she was a girl even though her birth certificate stated otherwise. The Montana resident was only able to accept her transgender identity last year at the age of 62.
Howard received hormone therapy and had gender-affirming surgery. She began to change her name and gender in official documents. Howard stated, “It’s been a blessing for me.” “I feel so at ease and right with myself for first time in so many different ways.”
She was able to alter her Social Security card, driver’s license, and pension accounts. She hasn’t been able alter one of her most important pieces of personal identification. Howard stated that everything has been altered except for my birth certificate. Howard said, “That’s all that is left.” Everyone else has accepted my gender, but they won’t.”
Montana is one of only four states in which transgender individuals can amend their birth certificates.
Officials from Montana’s health department defend the restrictions as necessary to ensure the accuracy of vital records. LGBTQ+ advocates claim it violates the dignity of transgender people and denies them equal protection under law.
The American Medical Association (AMA) adopted a policy in June 2021 that stated it would advocate for the removal sex designations from publicly available birth certificates. This was to protect privacy and prevent discrimination. According to the AMA, a person’s sex at birth will still be collected and submitted for statistical, medical, and public health purposes.
Already, the AMA had policies that recognized “the medical spectrum” of gender and that each person can determine their gender identity on government documents.
Dr. Nicole Clark, Montana’s delegate to AMA, stated that the Montana Medical Association has accepted the AMA birth certificate policy.
Transgender people can update their documents in most states. This is without the administrative hurdles that Montana created. Except for Montana, Tennessee has a law prohibiting transgender people from changing their birth certificates. Since 2019, the state has been challenging this policy in court. In Oklahoma, Gov. In Oklahoma, Kevin Stitt signed an executive decree in November that prohibited transgender individuals from changing their birth certificates. In West Virginia, circuit courts have approved sex changes to birth certificates in the past, but a 2020 ruling by the Supreme Court said that they cannot order the state’s health department to do so.
Cathryn Oakley is the state legislative director and senior counsel to the Human Rights Campaign. This advocacy group for LGBTQ+ advocates said that denying someone the opportunity to alter a birth record would make them a “less complete, full member of society.”
Oakley stated that the affirmation of a person’s gender identity is in someone’s best interests from a health perspective.
In April 2021, Montana Gov. Greg Gianforte signed Senate Bill 280 into law. This allowed the Montana Department of Public Health and Human Services to change a birth certificate after receiving a court order stating that the person’s sex has been surgically altered.
The 2017 rule that required transgender individuals to affirm their gender in order to alter their birth certificates was repealed by the law. Gender-confirmation surgery and other procedures are not required by the rule. These can be costly or unnecessary.
The American Civil Liberties Union represented two Montanans who sued the state to challenge the 2021 law. They argued that the law was too vague and violated equal protection and privacy rights.
Yellowstone County District Judge Michael Moses temporarily blocked the health department’s ability to enforce the law during the litigation in April 2022. Advocates for transgender rights expected that the order would reinstate the 2017 rule, and that transgender people would be able to amend their birth certificates again by filling out a form. The health department refused to comply.
The health department issued a more restrictive emergency rule than SB 280 a month later. Montanans cannot amend their birth certificates if there is a clerical error, or if they use DNA testing to verify their sex at birth. The rule states that sex is distinct from gender and cannot be changed even with surgery.
The state health department wants to maintain the new rule as long as Moses’s injunction under the 2021 law remains in force.
Jon Ebelt, spokesperson for the Health Department, stated that the injunction had created a regulatory gap to process birth certificates. The Department couldn’t revert to the previous rule. Ebelt stated in an email that the Department is bound to maintain the accuracy of vital records.
The ACLU of Montana moved Moses to clarify the terms of the injunction, and to order the health department follow the permissive 2017 rule.
Malita Picasso, an ACLU attorney said that leaving transgender Montanans without access to a valid and usable birth certificate is dangerous. It’s difficult to stress how extreme this move would be.
Howard had started to alter her birth certificate several months ago. On May 18, she received a judge’s approval confirming that her sex was surgically altered. She sent the documents via certified mail to the health department, following the requirements of the 2021 law. Although she expected to receive the final approval on May 23, that was the date the emergency rule became effective.
Howard called the Office of Vital Records at the health department after not hearing from them for several days. The health department’s Office of Vital Records confirmed that the form was received. However, the new rule meant that the sex information on the birth certificate could not be altered despite Howard’s court order. Howard was informed by the state that they were not processing gender changes to birth certificates.
Howard stated, “I don’t know how I can explain how demoralizing it was at that time.” “It just felt awful.”
Dr. Carl Streed Jr. is an assistant professor at Boston University School of Medicine and research lead in Center for Transgender Medicine and Surgery. He said that the gender on a birth certificate does not reflect reality. There are many chromosomal variations to XX and even XY.
Streed, who is also primary care physician, stated that stress over identity can adversely affect one’s health, leading “significant mental health problems and mental distress over time.”
He added that updating a birth certificate does not retroactively alter public health statistics that have been reported.
According to the Williams Institute at UCLA, which conducts research on gender identity and sexual orientation law, approximately 3,900 transgender individuals aged 13 and over live in Montana. Howard is one of these people.
Howard was not always happy before she made the transition. She now loves being herself and looks forward to each day.
“I don’t know how else to describe myself as a person. Howard stated that she is a transgender woman who lives her life at the age of 63. What’s the fuss if I want my gender to be changed? What bothers you about me changing my gender marker? I am not changing your gender marker. I don’t get the hostility.
KHN (Kaiser Health News), a national newsroom, produces in-depth journalism on health issues. KHN, along with Policy Analysis and Polling are the three main operating programs of KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization that provides information to the nation on health issues.
