Court Blocks Restrictive Birth Certificate Law That Violates Constitutional Rights of Transgender Montanans

BILLINGS – Today a state district court granted a preliminary injunction in Marquez v. State of Montana, holding that a law passed by the 2021 Montana Legislature likely violates the constitutional rights of transgender Montanans. The ACLU of Montana, the ACLU’s national office, and Nixon Peabody, LLP challenged Senate bill SB 280 on behalf of two transgender plaintiffs who seek to change the gender marker on their birth certificates.

"Today is a huge win for all Montanans as we strive towards a more equal community,” said Amelia Marquez. “Our constitution provides the means to protect the most vulnerable Montanans, and I am thankful for those who continue to advocate for gender diverse Montanans and our rights.”

“We are thrilled that the Court recognized the substantial and unnecessary burdens this law places upon transgender individuals in violation of their constitutional rights,” said Akilah Lane, staff attorney at the ACLU of Montana. “The Court’s injunction affirms the basis of our case: that SB 280 intentionally targets transgender people for unequal treatment because, as Judge Moses wrote, ‘only transgender individuals are subjected to these procedures and burdens in order to have a birth certificate that accurately reflects their gender.’"

“This ruling is an important step forward for our clients and for others affected by the unconstitutional law,” said Seth A. Horvath, a partner with Nixon Peabody’s Complex Disputes practice. “There are limits on legislative authority, and today the court prudently enforced those limits.”

"The needless barrier to accurate documentation for transgender people enacted by the Montana legislature is unconstitutional,” said Jon Davidson, senior staff attorney at the ACLU LGBTQ & HIV Rights Project. “It was rightfully enjoined today. This law serves no valid purpose other than to hurt transgender people like our clients Amelia Marquez and John Doe. We'll continue to fight this unconstitutional effort to harm transgender Montanans."

In this case, the ACLU of Montana, the ACLU, and Nixon Peabody are representing Amelia Marquez, a transgender woman, and John Doe, a transgender man, in their lawsuit challenging a law that makes it virtually impossible to correct the sex designation on their birth certificates. Marquez and Doe’s case asserts that Senate Bill 280 (passed by the 2021 Montana Legislature) violates their constitutional rights to privacy, equal protection of the law, and due process.

SB 280 requires a transgender person to obtain a certified copy of an order from a court indicating that the sex of the person has been changed by “surgical procedure.” The court order must then be provided to the Department of Public Health and Human Services (DPHHS). For many transgender Montanans, surgical procedures are either unwanted, medically contra-indicated, or cost-prohibitive.

In granting a preliminary injunction, the court found that, “Plaintiffs provided unrebutted evidence describing that neither gender-affirming surgery nor any other medical treatment that a transgender person undergoes changes that person’s sex. Instead, gender-affirming surgery aligns a person’s body and lived in experience with the person’s gender identity, which already exists.”

Before the passage of SB 280, transgender Montanans needed only to provide an affidavit to DPHHS to change the gender marker on a birth certificate. This process was efficient and easy and was administered without problem for years until the legislature decided to act.

The ruling is here: https://www.aclumontana.org/sites/default/files/field_documents/findings...