State says emergency birth certificate rule was legal, necessary

DPHHS director responds to lawmakers’ concerns, said a permanent rule proposal will take public comment

By: - June 9, 2022 5:26 pm

Birth certificate illustration (Photo by Getty Images).

The director of Montana’s Department of Public Health and Human Services said the agency had no other choice than to write a new rule addressing how birth certificates could be changed once a judge temporarily enjoined a law passed by the 2021 Legislature.

Director Adam Meier said because no law existed, the department was forced to create a rule. In a letter sent to lawmakers Thursday, he argued that lawmakers had repealed the 2017 rule as part of Senate Bill 280, and because of that, the state was unable to simply roll back to the policy adopted during the Bullock administration.

A Yellowstone County district judge had ordered SB280 temporarily enjoined, pending the conclusion of the court case, and for the law to revert to how it existed before SB280 was passed in 2021.

On April 21, Judge Michael Moses issued a temporary injunction against Senate Bill 280, which was passed by the 2021 Legislature and modified the requirements for changing a sex designation on a birth certificate. Moses had agreed with attorneys representing two transgender clients that the law likely was unconstitutional and issued an injunction against the law, which had required surgery and a court order for a birth certificate change.

However, for more than a month, citizens requested changes on birth certificates only to be told that DPHHS, which administers the office of vital statistics, was studying the court ruling. In late May, the department issued an “emergency rule” that stated no birth certificate changes would be allowed unless it was clerical error. Attorneys for the ACLU have argued that Moses’ ruling should have meant the law shifted back to a 2017 rule that allowed a birth certificate to be changed with a single-page form.

Meier, responding to criticism from the Legislature, told Rep. Ed Stafman, D-Bozeman, that not only was the emergency rule proper, but necessary. The director told lawmakers in a two-page letter sent on Thursday that when the Legislature passed SB280, it also contained a provision that repealed the 2017 administrative rule.

However, attorneys for the ACLU pointed out that is an inaccurate reading of Moses’ order, which prohibit any part of SB280 from going into effect, including the provision that wiped out the administrative rule.

Meier reminded the lawmakers that emergency rules, because they can be created without public input or notice, are only good for 120 days, or approximately four months, and that the department has already given notice to the Secretary of State, which tracks and catalogs the state’s administrative rules, that it has submitted a new proposed permanent rule, which ostensibly will follow the standard rule-making process.

The department also indicated that it believed a more permanent rule is necessary because it anticipates the legal battle over SB280 will be “complex and lengthy.”

Richie Melby, a spokesman for the Secretary of State’s office, confirmed to the Daily Montanan that it had received the notice and that the state will publish a proposed rule to replace the emergency rule on Friday.

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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.