BEFORE THE Department of Public

health and human services of the

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.8.102 and 37.8.311 pertaining to the amendment of birth certificate gender designations and issuance of a replacement certificate

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NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1. On September 22, 2017, the Department of Public Health and Human Services published MAR Notice No. 37-807 pertaining to the public hearing and comment period on the proposed amendment the above-stated rules at page 1609 of the 2017 Montana Administrative Register, Issue Number 18.

 

2. The department has amended the following rules as proposed: ARM 37.8.102 and 37.8.311.

 

3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

COMMENT 1: Many commenters supported the rules changes on the basis that maintaining the present court order and surgical requirement for changing one's gender on a birth certificate are unnecessarily burdensome and costly.

 

RESPONSE 1: The department agrees. Surgical transition requires costly and sometimes non-medically necessary medical procedures that may not be covered by health insurance.  Such procedures may also be medically contraindicated and thus dangerous for a given person. In 2014, the American Medical Association (AMA) released the following statement: "For many transgender people, a needless operation should not be a government requirement to amend a sex designation on a birth certificate." The AMA's statement encouraged that policies "must acknowledge that the correct course of treatment for any given individual is a decision that rests with the patient and the treating physicians."

 

Removing the necessity of obtaining a court order avoids putting unnecessary burden on registrants. Court petitions are expensive (the filing fee for a civil action in Montana district court alone is presently $120) and complicated, and not all individuals can access the court process without an attorney.  Moreover, there is not currently a single standardized process or requirement for issuing court orders for gender change. Several district court judges have questioned why the department involves their court in the process and that the current rule invokes privacy concerns by necessitating that the petitioner discuss private medical details in open court. 

 

COMMENT 2: Several commenters remarked that the surgical requirement constituted an impossible barrier for many intersex individuals to obtaining birth certificates that match who they are because these individuals may not require or desire surgery. 

 

RESPONSE 2: The department agrees. Studies estimate that as many as 1.7 percent of babies are born with chromosomes, gonads, internal or external genitalia that differ from expectations of traditional gender norms.  Only one in 2,000 of these babies is different enough that doctors may recommend surgical intervention to make the body appear more in line with such expectations.  Accordingly, a great number of such individuals may be prevented from obtaining a correct birth certificate without the proposed changes.

 

COMMENT 3:  Numerous commenters, including one retired Montana Supreme Court justice, submitted comment that having an accurate gender marker on a birth certificate is important to exercising an individual's legal rights. 

 

RESPONSE 3: The department agrees. Birth certificates are often required for purposes related to employment, education, family law, to verify an individual's identity, and to verify their citizenship. Having an accurate gender marker on a birth certificate is critical to validating an individual's dignity and privacy, two fundamental rights that are protected by Article II, Sections 4 and 10, of the Montana Constitution. These documents are also critical to protecting an individual's inalienable right to seek safety, health, and happiness as protected by Article II, Section 3.

 

COMMENT 4: Some commenters indicated that it can be dangerous for an individual to have identification that does not accurately match that individual's gender.

 

RESPONSE 4: The department agrees. Research indicates that individuals whose identification does not match their gender are frequently subject to discrimination that prevents access to programs or services that can be critically important and life-sustaining. Accurate birth certificates are important when enrolling in school, applying for jobs, and obtaining other identity documents.  This impact can be particularly acute in gender-segregated spaces such as substance-abuse facilities, hospitals, group foster homes, and homeless shelters.  When individuals are housed in these environments based on their sex assigned at birth according to their identity documents, it can lead to harassment and even violence. For example, the 2015 U.S. Transgender Survey found that 49 percent of transgender individuals who stayed at a homeless shelter reported verbal harassment and 17 percent reported sexual assault. 

 

COMMENT 5: Numerous commenters offered non-specific opposition to the proposed rules or argued that the changes are immoral or contradictory to their religious beliefs. Moreover, many individuals submitted comments that can be summarized as stating that one is biologically born a man or a woman and that anything else is subjective or political. 

 

RESPONSE 5: The department thanks the commenters for their concerns. However, the department may not consider individualized concepts of morality or religious conviction in how it conducts public business. Section 1557 of the Patient Protection and Affordable Care Act of 2010 (Public Law 111–148), the Act's nondiscrimination provision, prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health programs or activities—including those conducted by the department. Sex discrimination within the meaning of Section 1557 includes discrimination based on gender identity. For example, individuals cannot be denied health care or health coverage based on gender identity, and must be treated consistent with their gender identity. The amended rules aid the department in fulfilling this legal duty and reduce the risk of inadvertent discrimination. Moreover, Montana Executive Order No. 04-2016 mandates that all executive agencies "[d]evelop and implement policies necessary to ensure that all persons employed or served by state government are afforded equal opportunity, without discrimination, based upon [gender identity or expression]." The proposed and adopted rules serve to further this order. 

 

COMMENT 6: Some commenters remarked that the department has been enjoined from complying with the provisions of Section 1557. 

 

RESPONSE 6: The department thanks the commenters for their concerns; however the department disagrees. On December 31, 2016, one district court—the U.S. District Court for the Northern District of Texas—issued a nationwide injunction in Franciscan Alliance, Inc. et al v. Burwell, enjoining the U.S. Department of Health and Human Services Office for Civil Rights (HHS OCR) from enforcing Section 1557's prohibitions against discrimination based on gender identity. However, the law and rules promulgated under that law remain the law of the land, and the department must comport its policies with that law—even if noncompliance is not presently subject to punishment by HHS OCR. Even though HHS OCR is enjoined from enforcing this provision, individuals who face discrimination can still file a private lawsuit to enforce Section 1557, meaning the department could be subject to costly litigation.  As outlined above, there remains several other reasons to adopt the rules as proposed, including removing regulatory barriers that impose unnecessarily burdensome and costly regulations on Montana citizens, and complying with Executive Order No. 04-2016.

 

COMMENT 7: Many commenters remarked that the amended rules will lead to unforeseen fiscal impacts or other unanticipated results, such as increased fraud. Some commenters expressed concern that individuals will frequently change their gender marker back-and-forth.

 

RESPONSE 7: The department thanks the commenters for their concerns; however the department disagrees. In state fiscal year 2016, the Montana Office of Vital Records (OVR) processed 10 gender marker changes on Montanans' birth certificates under then-existing rules for doing so. To date, no fiscal impact has been realized aside from the minor fees charged by the OVR for filing a correction affidavit and obtaining a certified copy of the corrected document ($15 and $12, respectively). The department does not anticipate a new fiscal impact from the amended rules because the changes merely alter how an individual goes about obtaining a gender marker change. Two representatives from the Montana Department of Justice Motor Vehicles Division attended the public hearing on the amended rules and offered no concerns.

 

The department also respectfully disagrees that the amended rules will facilitate fraudulent activity. There is no evidence that simplified gender marker correction policies have resulted in greater levels of fraud.  Identity documents are, by definition, intended to accurately reflect one's identity.  Accordingly, mismatched identification often impairs law enforcement activities, and individuals with mismatched identification frequently report being delayed or detained by law enforcement officials. Attempts by law enforcement to locate persons of interest with mismatched identification can be impaired when official records or statements from friends and family do not match that individual's gender expression. This is one reason why, in the Department of Homeland Security's adoption of regulations to effect the Real ID Act 2005, the agency left "the determination of gender up to the States."

 

Simplified gender marker change policies do not present a financial fraud risk because lending institutions and other creditors typically do not track gender marker data for establishing identity. A person seeking to commit such acts is far more likely to change other identifying aspects, such as name and date of birth.

 

Other states that have enacted policies similar to the amended rules do not report instances where individuals frequently change the gender marker on a birth certificate. Even when simplified, this process is time-consuming and still costs $27. 

 

COMMENT 8: Many commenters remarked that the amended rules should only be the result of legislative action, or that the changes constitute an unlawful violation of the separation of powers as established by Article III, Section 1 of the Montana Constitution.

 

RESPONSE 8: The department thanks the commenters for their concerns; however the department disagrees. In accordance with Article III, Section 1, the Montana Administrative Procedures Act requires that each "proposed and adopted rule must include a citation to the specific grant of rulemaking authority pursuant to which the rule or any part of the rule is adopted." 2-4-305, MCA. In the case of the proposed and adopted rules, the department cites 50-15-204, MCA, where the Montana Legislature delegated the following rulemaking authority: "The department shall adopt rules establishing the circumstances under which vital records may be corrected or amended and the procedure to correct or amend those records." 

 

COMMENT 9: Some commenters remarked on the important role of the courts when determining whether an individual should be permitted to change the gender marker on a birth certificate.

 

RESPONSE 9: The department appreciates and greatly values the role that the judiciary plays in the vital records process. However, the department respectfully disagrees that courts play a necessary role in determining when an individual should be able to change the gender marker on a birth certificate. As mentioned above, Montana law and administrative rules supply no standard that must be met or process followed by a petitioner seeking a gender marker change. As a result, some Montana courts have questioned why the department interjects them in the process or requires individuals to reveal private medical information in open court. 

 

COMMENT 10: Some commenters remarked that the amended rules are too vague on the definition of the term "gender transition," or that a definition of the term should be supplied. 

 

RESPONSE 10: The department thanks the commenters for their concerns, but respectfully disagrees. The department agrees with the American Medical Association that "the correct course of treatment for any given individual is a decision that rests with the patient and the treating physicians." Because the appropriate course of treatment for gender transition or confirmation should be tailored to that individual's needs, the department has declined to provide a definition and instead will allow an individual to attest, under penalty of law, that they have undergone such transition. 

 

            4. The department intends to apply these rules retroactively to December 9, 2017. A retroactive application of the proposed rules does not result in a negative impact to any affected party.

 

 

/s/ Nicholas Domitrovich                             /s/ Laura Smith for                                      

Nicholas Domitrovich                                  Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

           

Certified to the Secretary of State December 11, 2017.