No appeal, no comment and no changes allowed: Birth certificate fix in limbo for Montana

Judge issued temporary injunction in lawsuit, but Montana officials not explaining delay

By: - May 2, 2022 6:22 pm

Attorney Akilah Lane speaks to Yellowstone County District Judge Michael G. Moses at a hearing on Dec. 22, 2021 on a challenge to Senate Bill 280. Seated at the attorneys’ table is Alex Rate of the ACLU of Montana (Photo by Darrell Ehrlick of the Daily Montanan).

Even though a judge in Yellowstone County has issued a temporary injunction, stopping a law passed by the 2021 Legislature from taking effect, the Daily Montanan has confirmed that individuals wanting to change a sex designation on a birth certificate still cannot.

Nearly two weeks ago, Yellowstone County District Judge Michael G. Moses ruled that the law change that prohibited individuals from changing the sex designation of male or female on a birth certificate without first providing proof of a surgical procedure and court order likely violated the state’s constitution. In a ruling, he issued a temporary injunction, which is not a final decision, but allowed the law to revert to the standard before the new law was passed.

Prior to the 2021 law, Montana had a one-page form to change the status of a birth certificate.

Ashley Nerbovig, a reporter for the Montana Television Network, first reported a transgender man had attempted to change his birth certificate but was denied by the state. On Monday morning, the Daily Montanan confirmed with an employee that even though the law has been enjoined and no appeal had been filed, she had been ordered by the state Department of Public Health and Human Services not to implement the previous process. The employee said that she was not a lawyer and had no further direction, and was awaiting guidance from the administration. She said she was keeping contact information of people who had called about a change.

The American Civil Liberties Union of Montana, which has successfully argued the case, said it had no comment on the current status.

The Daily Montanan asked the Montana Attorney General’s Office for clarification or if it had plans to appeal the injunction on Monday.

“We’re not participating in your blog,” said spokesperson Emilee Cantrell.

The Department of Public Health and Human Services acknowledged that it had also received questions from the Daily Montanan on Monday, including whether it planned to appeal the ruling, or the process it was planning for changing the designation on a birth certificate, but by the end of the day, it had not provided answers or clarification.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.