Montana allows transgender people to change their birth certificate

HELEN, Mont. – After months of defiance, the Montana Health Department said Monday it would follow a judge’s ruling and temporarily allow transgender people to change gender on their birth certificates.

The judge issued a scathing order on Monday morning saying health officials committed ‘calculated violations’ of his order, which told them to temporarily stop enforcing a law preventing transgender people from changing their sex on their certificates birth unless they have undergone surgery.

District Court Judge Michael Moses said Monday he would quickly consider contempt motions based on continued violations of his April order, which he clarified in a verbal order at a hearing Thursday. Just hours after that hearing, the Republican-led state said it would defy order and keep a rule in place prohibiting any changes to birth certificates unless it was due to an error of writing.

Judge Michael Moses issued an order Monday morning saying health officials committed “calculated violations” of his order.
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On Monday afternoon, the Department of Public Health and Human Services released a statement saying it would comply with the order, despite disagreeing.

During Thursday’s hearing, state attorneys argued that the law’s blocking did not prevent the health department from enacting new administrative rules.

The state, Moses wrote, engaged “in unnecessary legal gymnastics in an attempt to rationalize their actions and calculated violations of order.” He called the state’s interpretation of his earlier order “grossly ridiculous.”

“The department stands by its actions and analysis regarding the April 2022 preliminary injunction decision, as set forth in its regulations that closed critical regulatory gaps left by the court,” said Department of Justice spokesperson Jon Ebelt. health. The agency is considering its next steps in the litigation, the statement said.

“It’s unfortunate that it took two very clear court orders and many months to comply with the law,” said Alex Rate, attorney at the ACLU of Montana. The ACLU represents the plaintiffs, two transgender people who want to change their birth certificates.

“But from the perspective of transgender Montanans seeking accurate identification documents, today’s announcement is certainly progress,” Rate said.

Ebelt did not respond to an email asking when the state might begin processing applications. Rate didn’t know how many people had sought to have their birth certificates corrected in recent months, but he was aware of people who contacted the court after the April injunction and through Monday.

Montana Deputy Solicitor General Katie Smithgall, right, addresses the state's District Court on September 15, 2022 in Billings, Montana.
Montana Deputy Solicitor General Katie Smithgall, right, addresses the state’s District Court on September 15, 2022 in Billings, Montana.
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In April, Moses temporarily blocked a law passed by the Republican-controlled 2021 legislature that would require transgender residents to undergo surgery and obtain a court order before they could change their sex on their birth certificate. He said the law was unconstitutionally vague because it did not specify what type of surgery would be required.

Rather than revert to a 2017 rule that allowed transgender residents to file an affidavit with the health department to correct the gender on their birth certificate, the state instead issued a rule stating that a person’s gender could not be changed even after surgery.

The health department “has refused to issue birth certificate corrections for weeks in violation of the order,” Moses wrote. The state also did not appeal Moïse’s decision.

Judge Michael Moses has told health officials to stop preventing transgender people from changing sex on birth certificates unless they are undergoing surgery.
Judge Michael Moses has told health officials to stop preventing transgender people from changing sex on birth certificates unless they are undergoing surgery.
PA

The ACLU of Montana had sought judicial clarification due to state inaction.

Moses’ order on Monday included a copy of the 2017 rules.

“If the defendants need further clarification, they are encouraged to seek it from the court rather than engaging in activities that constitute unlawful breaches of the order,” Moses wrote.

Such an open challenge to a judge’s order is highly unusual from a government agency, said Carl Tobias, a former professor at the University of Montana Law School, now at the University of Richmond. . When officials disagree with a decision, the typical response is to appeal to a higher court, he said.

“Appeal is what you envision – not that you can overrule a judge’s orders. Otherwise people just wouldn’t obey the law,” Tobias said Thursday. “The system can’t work in this way.”‘

The legal dispute comes as conservative lawmakers in many states, including Montana, have sought to restrict transgender rights, including banning transgender girls from participating in girls’ school sports. Another Montana judge ruled last week that a law passed by state lawmakers to bar transgender women from competing on women’s collegiate sports teams was unconstitutional.

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