State, ACLU gear up for fight over changing Montana birth certificates

By: - August 29, 2022 6:33 pm

Yellowstone County Courthouse in downtown Billings, Montana (Photo by Darrell Ehrlick for the Daily Montanan).

Attorneys for a group of Montanans who want to change the gender marker on their birth certificate believe the state of Montana is intentionally ignoring a judge’s order and is pushing ahead making its own rules which violate a Yellowstone County District Court injunction.

Meanwhile, attorneys for the state have replied that the judge’s order created a legal vacuum that the Department of Health and Human Services had to fill with an emergency rule which some say is even more restrictive than the law passed by the 2021 Legislature.

On Sept. 15, both sides will go before Judge Michael G. Moses to sort out the issue which has confounded the public, attorneys and workers in the state’s office of Vital Statistics.

In 2021, the Montana Legislature passed a law that revised how gender markers on birth certificates were changed. Prior to the new legislation, Montanans could change the gender designation on a birth certificate with a form. However, lawmakers changed the law requiring a court order and an unspecified medical procedure to amend a birth certificate. The transgender community, along with many others, testified against the legislation, saying the law misunderstands the process, creates confusion when it comes to identification documents and puts residents’ safety at risk.

By almost any account, the legal path for challenging this legislation has been out of the ordinary. Moses originally issued a temporary injunction against the law, and most believed that the former procedure of using the one-page form would suffice. However, not long after the injunction went into effect, residents reported that the state was not processing the changes. During the interim, it said it was reviewing the order.

The State of Montana finally responded by scheduling an “emergency rule” procedure to create a new system for changing the gender markers, arguing that Moses’ order had essentially wiped the Legislature’s new law off the books, leaving a legal vacuum. But the plaintiffs, represented by the American Civil Liberties Union, argue the emergency rule and its legal interpretation fly in the face of how a temporary injunction should operate.

Lots of rules or none at all?

The State of Montana argues in court filings that the ACLU and its clients filed the lawsuit challenging Senate Bill 280, but that wasn’t until July 16, 2021. By that time, the state said, it had begun the administrative rule process that complied with the new law, which was signed by Gov. Greg Gianforte on April 30.

Assistant Solicitor General Kathleen Smithgall argues in a legal brief that Moses’ injunction and order only applies to Senate Bill 280, not the administrative rules process. Administrative rules are used by all state agencies that detail how laws, passed by the Montana Legislature, will be implemented. The rules have to be substantively and substantially the same as the law itself; in other words, an executive agency cannot pass rules contrary to the law.

However, Smithgall argues that on May 28, 2021, the rulemaking process, which began before the lawsuit challenged the bill, had begun and the previous procedure was completely rescinded by the new rule-making process.

“Plaintiffs never challenged the 2021 rule, only Senate Bill 280,” the filing said.  “After the court’s preliminary injunction iced the 2021 rule, however, there was left no regulatory process – at all – by which individuals could request DPHHS to amend the sex listed on their birth certificates.”

Attorneys for Montana argue the ACLU cannot go back and challenge the rule as part of this suit.

“It’s not the court’s job to clean up Plaintiff’s procedural mess just because they didn’t bring the right claims or ask for the right relief when they filed their lawsuit,” the brief said. “Plaintiffs simply don’t like the results that have flown directly from their own pleading decisions.”

Creating further injury

Meanwhile, attorneys for the plaintiffs, which include two transgender Montanans, argue that the DPHHS’ decisions to thwart the court’s order put their clients at risk.

“Defendants cannot continue to circumvent the preliminary injunction order by unlawfully creating alternative policies or rules that cause – and even exacerbate – the exact harm that the preliminary injunction was meant to prevent,” attorneys for the ACLU argue.

They are asking Moses to rule that the Department of Public Health and Human Services has violated the court order by the temporary rule, and order the state to return to the one-page change form it had previously employed.

Furthermore, the ACLU said the department violated state law when it adopted an “emergency rule” for changing birth certificates.

“An emergency rule may only be promulgated in circumstances that constitute ‘an existing imminent peril to the public health, safety or welfare that cannot be averted or remedied by any other administrative act,’ said Attorney Akilah Lane of the ACLU of Montana. “The temporary rule falls far short of that standard. There was and is no imminent peril to the public health, safety or welfare and DPHHS has never identified any such peril.”

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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.

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