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 January 11, 2023, the Montana Supreme Court issued its order, which explained that the trial court’s preliminary injunction—which the defendants never appealed—requires Montana to follow the procedure for amendments to birth certificates that existed prior to the passage of SB 280. Nonetheless, Montana began enforcing a new rule that prohibits any changes to the sex marker on Montana birth certificates for transgender individuals and then paused processing applications for changes altogether. Plaintiffs have moved to enforce the preliminary injunction and have defendants held in contempt. Plaintiffs have also moved for summary judgment that SB 280 is unconstitutionally vague.