Marquez v. State of Montana

Amelia Marquez is a life-long Montanan who is a transgender woman. John Doe is a transgender man who was born in Montana but currently lives out of state. Both wish to correct the gender on their birth certificates to correctly reflect who they are.

A recently passed law in Montana, Senate Bill 280, makes it difficult, if not impossible for Ms. Marquez, Mr. Doe and other transgender people born in Montana to correct the gender listed on their birth certificates. The new law requires a transgender person to obtain a court order indicating that the sex of the person has been changed by “surgical procedure” even though surgery is unwanted, unnecessary or cost-prohibitive for many transgender Montanans. Before the passage of SB 280, transgender Montanans needed only to provide an affidavit to the state to change the gender marker on one’s birth certificate. The Montana legislature put an end to this straightforward process even though it had worked effectively without incident.

The effects of having an accurate birth certificate can be life-altering. For starters, an incorrect birth certificate discloses the fact that a person is transgender, a profoundly private piece of information that no one should have required to expose without their consent. Additionally, it subjects transgender people to discrimination and harassment in a variety of settings, including employment, healthcare, and interactions with government employees and officials. SB 280 burdens transgender Montanans’ ability to obtain an accurate birth certificate, solely because they are transgender.

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 10, 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. That procedure allowed individuals born in Montana to obtain an amended birth certificate with the sex they attest to being their sex.