ACLU files lawsuit against Montana over law requiring proof of full sex change to alter birth certificates

Hand holding a paper sheet with transgender symbol and equal sign inside. | Getty

A lawsuit has been filed against the state of Montana over its law that requires residents to show proof of a cosmetic sex change before the gender designation on their birth certificate can be changed. 

At present, in order to make such a change on official government documents, transgender-identifying people must submit a court order and documented proof that they have undergone cosmetic surgery on their genitals to the state’s Department of Health and Human Services.

The plaintiffs bringing the lawsuit against the state are one male and one female, both of whom are in their 20s and identify as transgender. They claim that the new law requires them to disclose information that is personal and is too challenging. 

The American Civil Liberties Union is representing the plaintiffs, who assert that the state law is not in keeping with Montana's constitution and that it was created to marginalize people like them.

In the suit, they argue that the state doesn't need to know whether they've had a complete physical sex change or not, and claim the law violates Article II, Section 4 of the state constitution since it “denies Plaintiffs equal protection of the laws on the basis of their gender identity and sex.” 

To discriminate against “gender identity” is to discriminate against sex, they maintain. “The plaintiffs also appeal to the due-process clause of Article II, Section 17 Article II, Section 17 that provides that ‘no person shall be deprived of life, liberty, or property without due process of law,’ and Article II, Section 10, which states that individual privacy ‘shall not be infringed without the showing of a compelling state interest,’” LifeSiteNews reported.  

Supporters of the new law, such as state Sen. Carl Glimm, R-Kila, who sponsored the legislation, have defended the measure, insisting that such documents are public records that contain necessary facts. 

“When a person is born, you record where they’re born, you record their weight, you record their sex. And that’s important information to document,” Glimm has said. 

The Treasure State also recently passed laws banning biological boys from competing against girls in school athletic competitions, and to notify parents about sex education classes and give them the right to opt their children out. That Montana law also requires that sex-ed materials be publicly released and bans groups that promote abortion from promoting their materials.

In March of last year, just as the COVID-19 pandemic started spreading in countries outside of China, Idaho became the first state in the U.S. to pass laws requiring not only that high school and collegiate athletics in the state be maintained on the basis of biological sex but also vital statistics and public records. 

However, the contention from the plaintiffs that discrimination on the basis of gender identity is a form of sex discrimination is bolstered by a U.S. Supreme Court decision last year in Bostock v. Clayton County. The Bostock decision consolidated three cases centered around sexual orientation and gender identity in the workplace.

The ruling held that terminating someone from their job on the basis of “transgender status” is not constitutional and is a form of sex discrimination that is prohibited under Title VII of the Civil Rights Act, the section of the law pertaining to employment. While the ruling was confined to the employment arena, the holding has been applied to other areas of the law through the Biden administration's executive orders.

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