BILLINGS — A Yellowstone County judge ordered Thursday that Montana Department of Public Health & Human Service return to a simplified process for changing sex marker designations on birth certificates.
The DPHHS is entangled in a lawsuit with the ACLU over a 2021 law requiring transgender Montanans to get surgery and a court order before the state would change the sex designation on their birth certificate. On April 21, Yellowstone County District Court Judge Michael Moses said the health department could not enforce the law until the court decided whether it was constitutional.
Moses ordered the health department to return to the “status quo,” which the court said was a 2017 rule that allowed people to get an updated birth certificate if they submitted an affidavit and a gender designation form.
Instead, then DPHHS Director Adam Meier signed an emergency order eliminating any path for transgender Montanans to amend the sex marker on their birth certificate. The department later adopted a permanent rule mirroring the emergency order.
After the emergency order, the ACLU asked Moses to clarify whether the state was violating the court's preliminary injunction and if it was, to order DPHHS to reinstate the 2017 rules and find the state in contempt.
The state argued in the hearing that the preliminary injunction did not prevent the department from making news rules, as they did not implement the 2021 process.
Thursday's hearing was held to settle the questions around the preliminary injunction.
Moses did not hold the state in contempt, because he said attorneys for the Montana Department of Public Health and Human Services did not suggest to any agency it could circumvent the court order by passing new rules. However, he did order the 2017 process reinstated while constitutional questions around the 2021 law were settled.
“The Department thoroughly evaluated the judge’s vague April 2022 decision and crafted our final rule to be consistent with the decision. It’s unfortunate that the judge’s ruling today does not square with his vague April decision. The 2022 final rule that the Department issued on September 9 remains in effect, and we are carefully considering next steps,” said DPHHS Director Charlie Brereton in a statement.
Senator Greg Hertz, R-Polson, released the following statement in response to the ruling from Judge Moses.
“Like clockwork, Judge Moses issued yet another predetermined order in favor of liberal plaintiffs without thoroughly engaging with the legal issues at hand. Improper judicial activism aligned with Democrat operatives continues to be a constant theme in cases involving important policy and political matters in Montana.”
The 2021 law requiring surgery and court proceedings to change a person’s birth certificate was created by Senate Bill 280. The bill passed the 2021 Montana Legislature by three votes in the Senate and eight in the House. All “yes” votes came from Republican lawmakers. Gov. Greg Gianforte signed the bill into law in April 2021.
In July 2021, two transgender Montanans sued and said the law violated their constitutional rights. They requested a temporary pause on enforcement of the law until the lawsuit was settled. Moses granted their request about a year after Gianforte signed it into law.
Moses granted the injunction based, in part, on the law’s vagueness. For instance, the law does not define what kind of surgery qualifies for an amended birth certificate. Plaintiffs also presented sufficient evidence that transgender Montanans could be harmed without an accurate birth certificate, Moses said.
“A mismatch between someone’s gender identity and the information on their birth certificate may even subject them to violence,” Moses wrote in his order.
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