Republican legislators on Tuesday introduced a bill to stop a rule that would make it easier for transgender and intersex Montanans to change the gender on their birth certificate.
While Republicans said halting the measure would save money, Democrats said it was a way to discriminate against transgender Montanans instead of focusing on the $227 million budget shortfall Gov. Steve Bullock called a special session to address.
Republicans expanded the scope of the session on Tuesday, saying the Democratic governor’s call was too narrow and didn’t “include issues important to their caucus,” according to a statement issued last week.
When Republicans were proposing more options, Sen. Albert Olszewski, R-Kalispell, made a motion to keep the birth certificate rule from going into effect, saying it would cost $100,000 to $200,000 to implement. The motion received the two-thirds vote from the legislative body and will be drafted into a bill that will undergo a hearing process and vote by a committee.
The Department of Public Health and Human Services held a public hearing on the rule Oct. 13.
Olszewski said it would be expensive to update paper forms and the computer software to add additional fields for another gender. But Jon Ebelt, a spokesperson for DPHHS, said the rule change didn’t require any changes to the IT system used for birth certificates.
“There’s been no fiscal impact. We will be able to process requested birth certificate changes utilizing the current system. ... there will not be a need to add additional fields to state maintained forms,” Ebelt said in an emailed statement. Under the new rule, DPHHS would use the word "gender" instead of "sex" on birth certificates.
Under the existing rule, people must provide a court order saying their sex was changed by a surgical procedure before they can change their gender on their birth certificate. The new rule added a definition of intersex.
The DPHHS hearing allowed for public comment that day and through Oct. 20. Ebelt said DPHHS must file a notice of adoption with the Secretary of State. The department plans to file the notice of adoption soon, and it will go into effect two weeks after it’s filed.
If the rule is adopted, people will have three ways of changing their gender, with all three requiring a sworn affidavit attesting to the facts supporting the change. People can submit a gender designation form certifying they have undergone gender transition or have an intersex condition, submit a government-issued identification displaying the correct gender, or submit a court order.
At the hearing in October, DPHHS said the rule change would bring Montana in line with other states. Proponents of the rule change testified that having surgery to correct gender is outdated. There was also concern that judges aren’t required to clear a courtroom before hearing a case, which could out someone who is transgender.
The Montana Family Foundation asked people to attend the DPHHS hearing in October to oppose the rule change, but the cost was not a concern expressed during the hearing. Instead, they said the rule is something that should be considered by the Legislature.
Jeff Laszloffy, president of the Montana Family Foundation, said Tuesday his group had not coordinated with Olszewski, but he was at the Capitol gathering signatures for a petition to force the health department to produce a fiscal analysis on the change to birth certificates.
Laszloffy’s petition said Montana Family Foundation fails to see how the change would not have a cost. “A change of this magnitude must certainly involve, at the very least, software upgrades to every state and local government computer that uses ‘sex’ as an identifier," a letter attached to the petition reads.
The letter also says there are “as many as 71 recognized genders with more being added all the time.”
Though the health department said the change will not cause additional fields to be added to state forms, Laszloffy said he questioned that.
“That’s not what the other side wants,” he said. “They are not looking for male/female.”
Laszloffy said he has reached out to the Office of Public Instruction and Department of Justice, which he said had questions about possible costs. A spokesperson from the Department of Justice said the agency didn’t tell the Family Foundation they have concerns about the cost. A spokesperson for OPI said the agency hasn't conducted an analysis of any financial impacts.