MISSOULA, Mont. - Amelia Marquez, a transgender woman, and John Doe, a transgender man, filed a lawsuit today challenging a new law that makes it difficult, if not impossible, to correct the sex designation on their birth certificates. Marquez and Doe’s case asserts that Senate Bill 280 violates their constitutional right to privacy, equal protection of the law, and due process.
SB 280 requires a transgender person to receive 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 unnecessary or cost-prohibitive.
Marquez, a lifetime resident of Montana, has known she was a woman for the majority of her adult life. While Marquez has undertaken hormone therapy and counseling, she cannot afford the surgery required by SB 280, nor does she want to undergo the surgery at this time. Marquez, like many transgender women, has dealt with harassment, discrimination, and violence, and regularly fears being targeted because of her identity. Having a birth certificate that does not match her gender identity puts her at higher risk of harassment, hostility, and discrimination.
“I would like to change the sex designation on my birth certificate to match my female gender identity, but am unable to do so because of the Act,” said Amelia Marquez. “My inability to obtain a birth certificate that accurately reflects my female gender identity is a painful and stigmatizing reminder of the State of Montana's refusal to recognize me as a woman. Further, denying me an accurate birth certificate places me at risk of embarrassment or even violence every time I am required to present my birth certificate, because it incorrectly identifies me as male.”
Doe, a 22-year-old man born in Gallatin County who currently resides outside of Montana, has known he is a man since his adolescence. Doe currently works two jobs while he waits to attend college in the fall. He would like to correct the gender designation on his birth certificate to accurately reflect his gender, but does not wish to be subject to the public humiliation and degradation of having to provide his deeply personal medical records and publicly out his transgender status.
Doe currently receives gender-affirming care, including hormone therapy and counseling for gender dysphoria. In the spring of 2021, Doe underwent a gender-affirming surgery and does not intend to undergo additional surgeries that may be required by the new law in order to correct a birth certificate.
“The fear of having to produce his medical records in a public forum, forcing him to out himself as transgender, is unconscionable,” said Akilah Lane, ACLU-MT staff attorney. “In addition, requiring Mr. Doe to appear in court would result in significant emotional and financial burdens that are absolutely unnecessary. Mr. Doe, Ms. Marquez, and all Montanans who seek to correct the sex designation on their birth certificate should be able to without the undue burden created by this recent and inhumane law.”
“At a time when states all across the country are removing government red tape from the lives of transgender and non-binary people who want accurate identity documents, Montana has decided to increase government bureaucracy in people’s lives,” said John Knight, senior staff attorney with the ACLU LGBTQ & HIV Project. “Courts and state lawmakers around the country have increasingly said that these barriers to accurate identity documents are unnecessary and serve no purpose for the government. Transgender and non-binary people need recognition of who they are and not permission from the government to live their lives.”
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 until the legislature decided to act.
The ACLU of Montana, the ACLU Jon L. Stryker and Slobodan Randjelović LGBTQ and HIV Project, and Nixon Peabody LLC represent Vazquez.
The lawsuit, Marquez and Doe v State, was filed in the 13th Judicial District, Yellowstone County.