Marquez v. State of Montana

Senate Bill 280 makes it difficult, if not impossible, for transgender people born in Montana to correct the sex marker listed on their birth certificates. This law requires a transgender person to obtain a court order indicating that their “sex . . . has been changed by surgical procedure,” even though surgery changes one’s anatomy rather than one’s sex and even though surgery is unwanted, unnecessary, or cost-prohibitive for many transgender individuals born in Montana. Before the passage of SB 280, transgender individuals born in Montana only needed to provide an affidavit attesting to their sex to change the sex marker on their birth certificate. The Montana legislature put an end to this straightforward process, even though it had worked effectively without incident. SB 280 burdens transgender Montanans’ ability to obtain an accurate birth certificate, solely because they are transgender.

The effects of having an inaccurate birth certificate can be life-altering. For starters, an incorrect birth certificate can disclose the fact that a person is transgender without their consent. Additionally, employers, healthcare workers, government employees and officials, and others may harass and discriminate against transgender people whose identification documents do not align with their gender.

The ACLU, the ACLU of Montana, and Nixon Peabody LLP have challenged SB 280 in court, because it violates transgender Montanans’ right to equal protection, privacy, and due process.

UPDATE: On June 26, 2023, the trial court granted summary judgment in our favor and permanently enjoined enforcement of the Montana law and regulation barring a change of the sex marker on one’s birth certificate without obtaining a court order that one has been surgically changed as unconstitutionally vague under the Montana Constitution. The trial court also granted us attorneys’ fees for all our work in the case. It also held defendants in contempt for failing to comply with the preliminary injunction previously granted in the case.