Montana Supreme Court sends birth certificate matter back to court while leaving ’17 process

ACLU says it’s already filed work challenging Gianforte administration’s latest rule

By: - January 10, 2023 6:25 pm

Yellowstone County District Judge Michael Moses will decide if the DPHHS' rule adopted last year will replace a process for amending Montana birth certificates (Photo by Darrell Ehrlick of the Daily Montanan).

Though the Montana Supreme Court issued an order that tried to clarify an ongoing dispute over changing the gender designation on a Montana birth certificate, it may have been easier for the high court to use a white board instead of paper for the decision.

In a case that has twisted, turned and lurched, a five-member panel of justices led by Chief Justice Mike McGrath affirmed the decision of Yellowstone County District Court Judge Michael Moses. Moses had ruled that after he issued a temporary injunction, the state should have reverted back to a system adopted in 2017 that allowed residents to change a birth certificate with a single-page form.

However, instead of complying with Moses’ order, the Gianforte administration through the Department of Public Health and Human Services argued that rule had been wiped out by the passage of Senate Bill 280 during the 2021 Legislative session – an argument that was balked at by Moses, the Supreme Court, and the American Civil Liberties Union of Montana, which represented two transgender people who wanted to amend their respective birth certificates.

Yet instead of complying with the court injunction and waiting for the final court decision, the Montana Department of Public Health and Human Services began a separate emergency rule-making process arguing that Moses’ decision to temporarily stop the new law from going into effect left the department with no way to change birth certificates, and therefore it needed to design a new rule.

The Montana DPHHS then issued a new, different set of rules for changing a birth certificate, causing the Montana ACLU to seek clarification of Moses’ original order.

That has led to a volley of legal briefs and confusion that ultimately wound their way to the Montana Supreme Court.

The State of Montana, in its appeal to the state’s only appellate court, asked it to take control of the case and order that 2017 procedure, implemented while Democrat Gov. Steve Bullock was in office, no longer existed and that the department was forced to adopt new rules.

However, the Montana Supreme Court on Tuesday said that the 2017 procedure should remain valid and ordered the Gianforte administration to implement it. However, it also said the ACLU should have intervened sooner with concerns as the DPHHS sought to rewrite its own rules.

The Supreme Court then opened the door for the ACLU to challenge the rule DPHHS adopted last year, and on Tuesday afternoon, a spokesperson for the group said it has already filed a motion to do so.

For now, it’s expected the case will head back to Moses, who will decide whether the 2022 rule is valid or if the 2017 rule will stand in its place until the trial outcome has been decided.

The case, one of many filed that challenged laws passed by the 2021 Legislature, has yet to be decided, in large part because of the number of appeals and the rule-making.

The other justices joining Mike McGrath in the decision were Dirk Sandefur, James Jeremiah Shea, Beth Baker and Jim Rice.

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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.