DPHHS Officials State 2022 Administrative Rule Governs Sex Marker Birth Certificate Change Requests

Department of Public Health and Human Services officials announced today that, effective immediately, the agency will process applications to change sex markers on Montana birth certificates pursuant to a 2022 administrative rule on the subject and consistent with a 2023 law.

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” DPHHS Director Charlie Brereton said. “This notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.”

The 2022 final rule states the sex of a registrant on a birth certificate may only be corrected if the sex of an individual was listed incorrectly on the original certificate as a result of a scrivener's error or a data entry error, or if the sex of the individual was misidentified on the original certificate.

In both cases, the department must receive a correction affidavit and supporting documents consistent with the law.

DPHHS adds that all requests for birth certificate sex marker changes received by, or pending with, the DPHHS Office of Vital Records on or after October 1, 2023, which have not yet been adjudicated will be evaluated and processed in accordance with the criteria set forth under the 2022 rule. This implementation date coincides with the effective date of Senate Bill (SB) 458, enacted into law during the 2023 Legislative Session.

While DPHHS adopted the 2022 rule pursuant to independent statutory authority, implementation of the rule aligns with the requirements of SB 458. Recently, the Department has determined that enactment of SB 458, with the ending of the preliminary injunction in Marquez v. State of Montana, et al., requires implementation of the 2022 rule.

SB 458 defines sex in Montana law and provides that sex is to be determined by the biological and genetic indication of male or female without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.

This statutory definition controls for purposes of defining references to “sex” under Montana’s Vital Statistics statutes and administrative rules.