Montana has nixed the option of changing the sex listed on a birth certificate to reflect a transgender person’s gender identity, even after gender confirmation surgery.

The state's Department of Health and Human Services said Monday night that it would replace “gender” on birth certificates with biological sex. The move comes over a month after District Judge Michael Moses of Billings blocked a law that would require transgender people to show proof that they have transitioned medically in order to alter the distinction on their birth certificate. Moses deemed the law unconstitutional and too vague in that it did not specify what surgical procedure must be performed for a transgender person to qualify.


“Sex is different from gender and is an immutable genetic fact, which is not changeable, even by surgery,” Monday's emergency order read. “Accordingly, this emergency rule does not authorize the amendment of the sex identified/cited on a birth certificate based on gender transition, gender identity, or change of gender.”

The ruling from Moses was handed down in April, reverting the state to a 2017 law that required those who wished to change the gender listing on their birth certificates to sign an affidavit and provide it to the health department. With Monday evening’s order, that is not an option for transgender people anymore.

Montana’s order comes amid multiple state bills that would limit what transgender people can do to address their gender dysphoria, the state of emotional distress due to a disconnect between one's gender identity and biological sex. Procedures for transgender children, in particular, have been met with hostility from legislators in many red states such as Texas, where Gov. Greg Abbott and Attorney General Ken Paxton have designated the use of hormone therapies and puberty blockers in gender transitions as a form of child abuse.

“This interpretation is consistent with the context: The birth certificate generally records only facts that are known (or knowable) at the time of the person’s birth. Sex is one of those facts: A person’s sex can be determined — by observation, examination, or testing — at the time of birth. Gender/gender identity, as a social, psychological, and/or cultural construct, cannot,” the order read.


The Montana health department’s latest order stipulates that sex can be changed on birth certificates in very limited circumstances. For instance, people could secure the change in the event that a data entry error at the time of the birth misstated the sex or if the sex was misidentified at birth.

Rules regarding gender designation changes vary by state. Several states, such as Michigan, North Carolina, Florida, and Iowa, require affidavits from licensed physicians who performed clinical gender transition procedures.