UPDATED: DPHHS complying with court order after judge chides for violation

By: - September 19, 2022 2:51 pm

The state health department said Monday it would comply with an order from a District Court judge to allow Montanans to change the gender marker on their birth certificate — after issuing a statement last week in apparent defiance of the judge.

Monday, Yellowstone County Judge Michael Moses reiterated in a written order that the department had to revert to a 2017 rule for birth certificate changes. The judge said the department tried to use “legal gymnastics” to circumvent the same order from the bench last week.

In a turnaround from its earlier stance, the Department of Public Health and Human Services said in a statement Monday it would be complying with Moses’ order.

“The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” DPHHS said in a statement.

In April, Moses temporarily enjoined Senate Bill 280, which said Montanans can only update the gender marker on their birth certificate after a surgical procedure and court order. Gov. Greg Gianforte signed the bill into law in 2021.

Monday, DPHHS also defended its actions following the preliminary injunction.

“The Department stands by its actions and analysis concerning the April 2022 preliminary injunction decision, as set forth in its rulemaking that addressed critical regulatory gaps left by the court,” the agency said in a statement. “Since the Department has now received the court’s clarification, it is carefully considering next steps in the litigation.”

DPHHS was sued by the ACLU, among other plaintiffs, on behalf of two transgender Montanans over SB 280.

The temporary injunction against SB 280 required the state return to the “status quo.” In the bench order Thursday and again in the written order Monday, Moses directed the state to return to a 2017 rule permitting Montanans to change the gender marker on their birth certificate with a single-page form as litigation continues.

Moses included a copy of the 2017 rule in an exhibit in his filing Monday.

After Moses issued his order Thursday, DPHHS Director Charlie Brereton issued a statement saying the department would be continuing to follow a final rule it released Sept. 9, which bars transgender Montanans from being able to update the gender marker on their birth certificate.

The Sept. 9 rule made permanent an emergency rule that was issued in May, which was widely opposed by the public during a June hearing.

In his order Monday, Judge Michael G. Moses said he was “unconvinced” of the state’s claims that his preliminary injunction “left no regulatory process for changing one’s sex on a birth certificate.”

“The Court finds these claims are demonstrably ridiculous,” the order read.

“Defendants apparently interpret ‘that which existed prior to the enactment of SB 280’ to mean they have carte blanche to enact whatever regulations they want as evidenced by the actions taken by Defendants after the issuing of the Order,” Moses said in his order.

Moses said that there can be “no serious argument” the DPHHS regulations adopted after the enjoining of SB 280 “constitute a return to the status quo.”

The judge also said the state engaged in “needless legal gymnastics to attempt to rationalize their actions and their calculated violations of the Order.”

“If Defendants representations were deemed to have merit, preliminary injunctions in Montana would be rendered meaningless,” Moses said in the filing Monday.

Alex Rate, legal director for the ACLU of Montana, said it was unfortunate that it took two clear court orders and several months for the department to comply with its responsibilities under the law.

“But from the perspective of transgender Montanans who are seeking to obtain accurate identity documents, this is a step in the right direction,” Rate said.

Need to get in touch?

Have a news tip?

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.