It’s About to Get Tougher for Transgender People in Montana to Amend Birth Certificates

Kyndra Nevin recalls with dread having to ask a Montana judge to sign an order documenting that she’d had gender-confirmation surgery so she could change the gender on her birth certificate to female.

Nevin, a Bozeman resident and now 55, said the process she went through about a decade ago was humiliating and she continually worried the judge would deny her request.

“I had to out myself just to get that court order, to basically every court staff member that I came in contact with,” she said. “Until it was all said and done, I was never sure if it was going to be OK.”

Montana health officials revised the rules governing birth certificate changes in 2017 so that other transgender people wouldn’t have to go through such an ordeal. Obtaining a judge’s order was an option, but people could simply fill out a form affirming that they had undergone a gender transition — and the rule did not explicitly define a transition as surgical. Gender-confirmation surgery is not necessary for people to undergo a gender transition.

But this spring, less than four years after those rules were implemented, the Republican-led Montana Legislature passed a bill signed by Republican Gov. Greg Gianforte that once again requires a court order to change a birth certificate.

The state Department of Public Health and Human Services has proposed rules for the new law that say the court order must confirm “that the sex of an individual born in Montana has been changed by surgical procedure.”

A hearing on the proposed rules was scheduled for Thursday.

The new law and rules would affect dozens of people each year. The state health department fielded an average of 55 requests per year over the past three years to change the gender designation on their birth certificates, according to department spokesperson Jon Ebelt. In Montana, there are two designations for gender: male and female.

Fourteen other states require residents to provide proof of surgery to change the gender marker on their birth certificates, said Logan Casey, a senior policy researcher for the Movement Advancement Project, a research and advocacy organization.

“These kinds of laws are intrusive, overly burdensome and even dangerous for transgender people,” Casey said.

Anna Peterson, a psychotherapist from Missoula who primarily works with transgender people, said the requirement to not only get the surgery — which many transgender people do not get for various reasons — and then present proof of that surgery to a judge can prevent people from changing their birth certificates.

Having that identity-affirming document is very important, said Peterson, who is transgender. But going through such a public process is not only humiliating, as Nevin experienced, it can also expose them to perpetrators of hate crimes, as Casey noted.

“It can be really dangerous. Not to mention it can be psychologically harmful; it outs us and potentially puts us at risk,” Peterson said.

Supporters of the new law said the change is meant to ensure accurate statistical data. They also said the state health department did not have the authority to make such a drastic change in 2017 without legislative approval.

Sen. Carl Glimm (R-Kila) sponsored Senate Bill 280, the legislation that became the new law. He said health department officials waited until after the legislature had convened in 2017 to begin the rule-making process to avoid input from the legislature on a major policy shift.

Glimm said his goal was to reverse that policy change and put the power of making such changes back in the hands of state lawmakers. The facts on a birth certificate are all important for statistical data and therefore a person must have a “very good reason” for changing them, he said.

Nevin, who now advocates for transgender rights and participated in a 2018 study on the wellness of rural transgender people, said she followed the bill through the legislative process and never heard a legitimate justification for changing the rules back.

“I would sure like to know what their reasoning was because everything I heard in the legislative hearings didn’t really amount to a good reason — other than that they were just upset that it happened,” Nevin said.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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