The state health department is enforcing its rule largely barring transgender Montanans from being able to update the gender marker on their birth certificate despite scathing comments and an order Thursday from a District Court judge.
In a court hearing, Yellowstone County Judge Michael Moses said a 2017 rule that allowed a birth certificate to be changed with a single-page form be applied as litigation continues over legislation from 2021. Contrary to the judge’s directive, however, the Montana Department of Public Health and Human Services said it would continue to enforce the permanent rule it adopted last week.
DPHHS Director Charlie Brereton said in a statement following the hearing that the department crafted its final rule to be consistent with the judge’s April decision.
“It’s unfortunate that the judge’s ruling today does not square with his vague April decision,” Brereton said. “The 2022 final rule that the Department issued on September 9 remains in effect, and we are carefully considering next steps.”
The department was sued by the ACLU among other plaintiffs over Senate Bill 280, which passed in the 2021 legislative session and said Montanans can only update the gender marker on their birth certificate after a surgical procedure and court order. The department’s new rule aligns with SB 280.
However, in April, Moses issued a temporary injunction against SB 280.
Moses said one of the questions raised by the plaintiff was whether anyone should be found in contempt of court for violating his April order.
“I was tickled to death to hear that counsel had no involvement with trying to figure out how to do rules that circumvented my order. As a result, I don’t believe there’s any reason for contempt of court here,” he said.
The state’s lawyers later clarified that they did advise DPHHS leading up to the decision for the temporary and permanent rules, but said they “never advised any agency that they can or should circumvent any court order.”
In one of several feisty exchanges in the Billings courtroom, Moses said the rules put out by the department regarding gender marker changes, which he called “mirror images of SB 280,” “circumvent the preliminary injunction issued by this court.”
“The timing by the department is disastrous because they’re simply thumbing their nose at orders,” Moses said. “That which existed prior to the enactment of SB 280 period couldn’t be clearer.”
The state argued that the department still had rule-making authority following the injunction.
Spokesperson for DPHHS Jon Ebelt said the department is awaiting a written order from the hearing and carefully considering next steps regarding updating birth certificates.
“There is no such order in place at this time,” Ebelt said in an email. “The court acknowledged that it could not address the 2022 final rule and, therefore, could not invalidate it.”
DPHHS did not respond to a question on whether it currently has pending applications for birth certificate changes.
Sen. Greg Hertz, R-Polson, who chairs the Special Select Committee on Judicial Accountability and Transparency, said in a statement that Moses issued a “predetermined order in favor of liberal plaintiffs.”
Malita Picasso Staff Attorney ACLU LGBTQ & HIV Project: The Court’s ruling from the bench confirmed that:(1) its 4/21 Order was already abundantly clear; and (2) that the Dept is required to preserve the status quo by maintaining the 2017 policy for the duration of the litigation
— ACLU of Montana (@ACLUMT) September 15, 2022
Plaintiffs the ACLU of Montana, the ACLU Foundation LGBTQ & HIV Project, and Nixon Peabody LLP also issued a statement following Moses’ order:
“Forcing anyone to carry documents that contradict their identity is unjust and unconstitutional, and such a rule marks transgender people for further mistreatment and discrimination. We’ll continue to fight this baseless law until no transgender person is denied this fundamental right.”
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