Opponents to a proposed rule that would require a person to undergo a surgical procedure and petition a court to change their birth certificate said the policy would put transgender Montanans at risk of violence.
Those who spoke against the proposed rule, which the state health department was directed to draft under a new law passed by Republican state Sen. Carl Glimm of Kila, asked for the policy to be rejected, delayed or crafted as broadly as possible.
Glimm was the only supporter of the rules during a Zoom hearing held Thursday. The meeting was delayed at one point by racist messages that flooded the chat function and someone playing loud music over those trying to give testimony.
In 2017, the state Department of Public Health and Human Services, then under the administration of former Democratic Gov. Steve Bullock, adopted rules that allowed a person to change the gender designation on their birth certificate by submitting a form. Glimm's Senate Bill 280, which Republican Gov. Greg Gianforte signed in April, requires a person have a surgical procedure and then petition a court to update a birth certificate.
Neither the proposed rules or Glimm's bill define what surgical procedure would qualify. Dr. Lauren Wilson, a pediatrician in Missoula and vice president of the Montana Chapter of the American Academy of Pediatrics, said the bill and subsequent rule were based on a misunderstanding of what transitioning involves for transgender people.
"Surgical care is not really part of the care for transgender (minors)," Wilson said, adding that many transgender people don't end up having surgical care. Studies in this area show "systemic barriers" to surgical care and note that information about the prevalence of procedures is limited by a lack of good data.
The type of medical care a transgender person receives is highly personal, Wilson said, and sometimes early care can make surgery unnecessary.
"This would penalize people for following best-practice guidelines," Wilson said.
There's not one standard gender-affirming surgery, Wilson said, asking for a broad definition to be included in the rule.
"There's no real defining gender-transition surgery. There are a number of procedures that can be done, but this is really an individual choice," Wilson said.
The state health department did not immediately return an email asking how it would be determined which procedures qualify as surgery under the rule or if that decision would be up to the court that would issue an order saying a person's sex has been changed.
The proposed rule also changes language from the existing rule, moving from "gender" to "sex" and from a birth certificate from being "corrected" to "updated."
Others who spoke against the rule said requiring a surgical procedure means that updating a birth certificate would only be accessible to those with the health insurance and financial resources needed to afford that kind of medical care.
"It was a horrific procedure, it's a highly personal decision, and my child had the luxury of having had private insurance. This is hugely expensive," said Carol Wald, who testified her child had gender-affirming surgery.
Shawn Reagor, with the Montana Human Rights Network, said having a state-issued identification that does not fit with a person's appearance creates the risk of violence against transgender people.
"Having a birth certificate that's incongruent with not only a person's identity, but also other forms of state and federal identification, is extremely dangerous," Reagor said. "It can put people's safety at risk and put their housing in jeopardy. Many trans people, including myself, have personal stories of dangers that they've faced as a result of not being able to update identification documents."
Izzy Milch, the LGBTQ advocacy coordinator with Forward Montana, asked the health department to reject the rule.
"Incorrect gender markers can out a trans person any time they need to show ID, whether that's applying for jobs, enrolling for school or just getting a drink at a bar. This outing can lead to discrimination, harassment and violence," Milch said.
Reagor said the racist comments that delayed the meeting illustrated how transgender Montanans can be the targets of violence.
After the meeting, a spokesperson for the department said it uses "a variety of protocols to prevent disruption of rule hearings."
"Since transitioning from in-person to remote hearings as the result of the COVID-19 pandemic, the Department has conducted dozens of rule hearings without incident," the spokesperson said. "The department is reviewing its procedures to determine what changes are necessary to prevent disruptions during future rule hearings."
In support of the rule, Glimm said what the health department drafted meets with the intent of his legislation.
"This bill was duly passed," Glimm said.
SB 280 requires the Department of Public Health and Human Services to amend the rule.
In an email Thursday evening, a spokesperson for the department said "in deciding upon what action to take on the proposed rulemaking, the department will consider each of the comments that are received and the legal requirements that must be met under SB 280."
If the rule is adopted as drafted, it would take effect on the day of adoption, which happens through publication of an adoption notice with the Secretary of State. The earliest that could happen is July 10.
Public comment on the rule will be accepted until Jun 25 and can be submitted by emailing email@example.com or through Heidi Clark, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210.