By Brooke Migdon - 04/18/24

Montana’s Department of Public Health and Human Services adopted the rule in 2022, after a district court blocked the state from enforcing a 2021 law allowing individuals to amend their birth certificates only in cases where a person’s sex “has been changed by surgical procedure.”

State health officials at the time said, despite the court’s ruling, Montana residents are still unable to alter their birth certificates because sex is an “immutable genetic fact, which is not changeable, even by surgery.”

In February, Montana’s health department announced the agency would process applications for amending the sex designations on birth certificates, but only for applicants whose sex was misidentified at birth or whose incorrect sex designation was the result of a scriveners’ error. The agency clarified that it would not amend a birth certificate based on “gender transition, gender identity, or change of gender.”

The state’s amendment process, the agency added, moving forward would also be subject to the provisions of Senate Bill 458, a law signed by Republican Gov. Greg Gianforte in May that rigidly defines sex as being “determined by the biological and genetic indication of male and female.”

The law allows transgender people “to identify with whatever gender, but not sex, they wish,” a spokesperson for Gianforte told the Montana Free Press.

The state’s Justice Department this year also ended the Montana Motor Vehicle Division’s (MVD) prior practice of allowing an individual to change the sex designation on their state-issued driver’s licenses, which transgender individuals had previously been able to alter with a letter from a doctor.

Thursday’s lawsuit, filed in Montana district court, challenges the 2022 rule, the MVD policy and Senate Bill 458 as it applies to issuing amended birth certificates and driver’s licenses. Each of the measures, the lawsuit argues, is “ invalid, illegal, and unconstitutional.”

The two plaintiffs seek to represent “all transgender people born in Montana who currently want, or who in the future will want” the sex designation on the identity documents changed “to match what they know their sex to be.” They are represented by the American Civil Liberties Union (ACLU), the ACLU of Montana and Nixon Peabody LLP.

“After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, is forcing me to carry around a birth certificate that incorrectly lists my sex as male,” Jessica Kalarchik, a U.S. Army veteran and one of the plaintiffs, said Thursday in a statement. “I am being forced to use a birth certificate that is inaccurate and that places me at risk of discrimination and harassment whenever I have to present it.”

“I live my life openly as a woman,” Kalarchik added. “I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male.”