A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.

15 November 2017 — 0738 mdt

Olszewski’s distraction


After the special legislative session was expanded yesterday, Sen. Albert Olszewski (R-Kalispell), an orthopedic surgeon, and a candidate for the 2018 Republican nomination for the U.S. Senate seat now held by Democrat Jon Tester, introduced SB-10, a bill to overturn a new rule on birth certificates promulgated by Montana’s Department of Public Health and Human Services, which maintains the state’s vital statistics.

The new rule, scheduled to take effect 9 December, simplifies the procedure for changing a birth certificate following a gender transition. A public hearing on the rule was held on 12 October and comments were accepted through 20 October.

The new rule adds a definition to the list set forth in MCA 50-15-101:

“Intersex condition” means having, or having been diagnosed by a medical professional to have, any of a variety of conditions in which a person is born with a variation of chromosomes, gonads, sex hormones, or reproductive anatomy that is incongruent with typical notions of female or male bodies.

And eliminates the requirement that the change to the birth certificate must be ordered by a court:

  1. a correction affidavit accompanied by a completed gender designation form issued by the department certifying under penalty of law that that the individual has undergone gender transition or has an intersex condition and that the gender designation on their birth certificate should be changed accordingly, and the request for gender designation is for the purpose of ensuring the birth certificate accurately reflects their gender and is not for any fraudulent or other unlawful purpose; or

  2. a correction affidavit accompanied by presentation of a governmentissued identification displaying the correct gender designation; or

  3. a correction affidavit accompanied by a certified copy of an order from a court with appropriate jurisdiction indicating that the gender of an individual born in Montana has been changed.

The new rule uses the word “gender” in place of the word “sex,” a change fraught with political implications. In general usage, “sex” refers to biological differences, while gender may also refer to cultural and social differences. The new rule also replaces the word “amend” with “correct,” a change implying that the original determination of the child’s biological sex was in error. If “amend” must be abandoned, “update,” which implies change but does not pass judgment, is a better replacement than “correct.”

SB-10 repeals the new rule:

The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed by surgical procedure.

According to news reports, Olszewski and some of SB-10 supporters contend the new rule will be expensive to implement, requiring formidable changes in computer code, a allegation rejected by MTDPHHS and proponents of the new rule. I disagree with Olszewski. Because the information will be entered into a computerized database, a field in the database may have to be modified to accept a new value. That’s a trivial change. Cost is a red herring.

The real issues are whether (1) a birth certificate must record the infant’s biological sex at birth as one of two sexes, male and female, or a rare third condition, “intersex,” that’s caused by a biological failure, and (2) gender should be based on a person’s chromosomes or on a person’s perceptions of self. Many deeply religious people believe that changing gender is a physical impossibility, and that attempts to change gender are blasphemous and proof of severe mental illness.

SB-10 is a proxy for that debate. It’s a distraction from the budget issues the special session was called to resolve. And by raising a divisive issue in so high decibel a manner, it gratuitously makes life more difficult for a group of people for whom life is already far too difficult. SB-10 is not a kind act.

If Olszewski won’t withdraw the bill, he should amend it to suspend the new rule while an interim legislative committee examines the issue. If the bill passes as currently written, Gov. Bullock should veto it.

There’s a risk, of course, that SB-10 could be made part of an omnibus budget bill as a way of evading a veto. But that’s a risk Democrats and progressives need to take. SB-10 is a distraction, a red herring, an invitation to chase a wild hare. Finding the money needed to maintain a barely decent level of services to the poor, the aged, the infirm, infants and children, and the hungry, must be the highest priority.