Montana Gov. Gianforte signed SB 280, requiring surgery and a court order to amend a birth certificate's sex marker

On April 30, 2021, Montana Gov. Greg Gianforte signed Senate Bill 280, sponsored by Sen. Carl Glimm, R-Columbia Falls, reversing a 2017 Department of Public Health and Human Services administrative rule that had let transgender Montanans update the sex designation on their birth certificate to match their gender identity by affidavit. SB 280 instead required DPHHS to receive a court order confirming the person underwent gender-affirmation (sex-reassignment) surgery before it would amend the sex marker, and directed the department to conform its rules accordingly. The bill took effect immediately upon signing.

The law was challenged by the ACLU of Montana, the ACLU's national office, and Nixon Peabody LLP on behalf of two transgender plaintiffs, in a case referred to as Marquez v. State of Montana, arguing SB 280 violated the equal protection and due process clauses of the Montana Constitution.

Updates

2022-04-21 — District court preliminarily enjoined enforcement of SB 280 [4, 5]

Yellowstone County District Judge Michael Moses granted a preliminary injunction blocking enforcement of SB 280, ruling the law was unconstitutionally vague because it did not specify which surgical procedures qualified. The injunction restored the 2017 affidavit-based rule for the duration of the litigation.

2023-06-26 — District court ruled SB 280 unconstitutional, held state in contempt [6, 7]

Judge Moses permanently struck down SB 280 and the state's related administrative rule as unconstitutionally vague, ruling both were "void on its face" because no surgical procedure exists that changes a person's sex. He held the Department of Public Health and Human Services in contempt for repeatedly defying his prior order, ordered the state to revert to the pre-SB 280, affidavit-based process, and ordered Montana to pay plaintiffs' attorneys' fees for the entire litigation.