A transgender man and transgender woman have filed a lawsuit challenging a new law that makes it nearly impossible for transgender Montanans to change the gender on their birth certificates without undergoing expensive and often unnecessary gender confirmation surgery.

Under the law, a transgender person must receive a certified copy of a court order indicating that their sex has been changed by “surgical procedure,” and submit it to the Montana Department of Public Health and Human Services before the gender marker on their birth certificate can be changed.

Prior to the law’s passage earlier this year, under the administration of Gov. Steve Bullock (D), transgender individuals needed only to provide an affidavit attesting that they had undergone a gender transition to DPHHS in order to change the gender marker on their birth certificate.

The simple and relatively efficient process was functioning fine, without any issues, until Republicans in the state legislature decided to interfere and impose additional requirements, reports the Great Falls Tribune.

But the two lead plaintiffs in the case, Amelia Marquez and John Doe, argue, in a complaint filed in state court, that Montana’s new law, signed into effect by Gov. Greg Gianforte (R) in May, violates their constitutional right to privacy, equal protection under law, and due process. Gianforte, DPHHS, and its director, Adam Meier, are listed in their official capacity as plaintiffs.

In their complaint, the plaintiffs argue that the law is vague because it does not specify which surgical procedures would satisfy the “surgery” requirement. They also claim the state should not be involved in determining someone’s gender identity and is not qualified to recommend medical procedures to which transgender individuals must submit in order to change their gender marker.

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Furthermore, they argue, in addition to the fear of backlash against them for having identity documents that do not match their gender presentation, the lawsuit maintains that cisgender Montanans are allowed to make changes to their birth certificate without undergoing the same requirements, thus making the law’s requirements arbitrary and discriminatory.

“The act’s sole purpose is to intentionally burden a transgender person’s ability to correct their birth-certificate sex designation to conform with their gender,” the complaint argues.

The plaintiffs are asking for the court to declare the new law unconstitutional and issues a preliminary injunction — and later, a permanent injunction — blocking state officials from trying to enforce the law. 

See also: Wyoming Supreme Court clears path for transgender woman to change the gender marker on her birth certificate

Besides surgery being unnecessary in some cases where a person is suffering from gender dysphoria, such procedures can be prohibitively expensive, especially if a person’s insurance carrier refuses to provide gender-affirming care to transgender individuals, the plaintiff’s lawyers argue.

In addition, the cost of obtaining a lawyer in order to obtain the required court order make it nearly impossible for transgender individuals to change their gender marker on vital documents, simply because it is not economically feasible for most people working paycheck to paycheck — as many transgender people do — to afford the cost of legal representation or pay for the cost of surgery or post-surgical care.

Marquez, a lifetime resident of Montana, has known she was a woman for the majority of her adult life. Although she has undergone hormone therapy and counseling, Marquez cannot bear the financial burden of pursuing surgery, and would prefer to forego it altogether if possible.

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Unfortunately, due to her transgender status, Marquez has experienced harassment, discrimination, and violence because her birth certificate does not match her gender identity or gender presentation. She fears being targeted because of her identity, and believes the law will simply put her at higher risk by blocking her from obtaining a birth certificate with a corrected gender marker.

“I would like to change the sex designation on my birth certificate to match my female gender identity, but am unable to do so because of the Act,” she said in a statement. “My inability to obtain a birth certificate that accurately reflects my female gender identity is a painful and stigmatizing reminder of the State of Montana’s refusal to recognize me as a woman. Further, denying me an accurate birth certificate places me at risk of embarrassment or even violence every time I am required to present my birth certificate, because it incorrectly identifies me as male.”

See also: Parents of trans children sue Arizona over surgical requirement for changing gender markers

Doe, who was born in Montana but lives elsewhere, has known he is a man since adolescence. He would like to correct the gender marker on his birth certificate as well, but fears being subjected to the public humiliation or degradation that comes from having to provide his medical records as evidence of a transition, thus publicly “outing” himself.

Doe is currently receiving gender-affirming care, including hormone therapy and counseling for his gender dysphoria. Earlier this spring, Doe underwent a gender-affirming surgery, but does not want to undergo additional gender confirmation surgeries that the law is trying to require.

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“The fear of having to produce his medical records in a public forum, forcing [Doe] to out himself as transgender, is unconscionable,” Akilah Lane, a staff attorney with the American Civil Liberties Union of Montana, said in a statement. “In addition, requiring Mr. Doe to appear in court would result in significant emotional and financial burdens that are absolutely unnecessary. Mr. Doe, Ms. Marquez, and all Montanans who seek to correct the sex designation on their birth certificate should be able to without the undue burden created by this recent and inhumane law.”

“At a time when states all across the country are removing government red tape from the lives of transgender and non-binary people who want accurate identity documents, Montana has decided to increase government bureaucracy in people’s lives,” John Knight, a senior staff attorney with the ACLU’s LGBTQ & HIV Project, said in a statement. “Courts and state lawmakers around the country have increasingly said that these barriers to accurate identity documents are unnecessary and serve no purpose for the government. Transgender and nonbinary people need recognition of who they are, and not permission from the government to live their lives.”

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