ACLU asks Yellowstone County judge to hold state in contempt for failing to comply with court order

Supreme Court also ordered DPHHS to revert back to 2017 rule for changing sex on birth certificate

By: - January 25, 2023 4:57 pm

Judge Michael Moses of Yellowstone County at a court hearing on July 11, 2022 (Photo by Darrell Ehrlick of the Daily Montanan).

The American Civil Liberties Union has filed a motion in Yellowstone County District Court to hold the Montana Department of Public Health and Human Services and Gov. Greg Gianforte in contempt for refusing to follow what it says are two court orders to change its policy for amending gender designations on birth certificates.

It has been nearly a year since Yellowstone County District Court Judge Michael G. Moses issued a preliminary injunction against a law passed by the 2021 legislature that would have required citizens wishing to change a birth certificate gender designation to provide a court order along with a doctor’s testimony that an unspecified surgical procedure had been completed.

A group of organizations, led by two transgender plaintiffs, sued the state saying the newly minted law was illegal, and asked for a preliminary injunction. Moses granted the injunction, which usually means the law reverts back to whatever existed before the court case. In this case, it was the 2017 rule that mandated a one-page form to change a birth certificate.

But during the ongoing legal battle, the Montana Department of Public Health and Human Services argued that as part of the new law, the legislature had wiped out the 2017 procedure, and so the department was forced to create a new rule in 2022.

That interpretation was appealed to the Montana Supreme Court where a ruling issued previously this month seemed to clarify that the Department of Public Health and Human Services was not only capable of reverting back to the 2017 procedure, it was legally mandated to do so.

However, in the court documents filed Wednesday, attorneys for the ACLU said the state confirmed it would not use the 2017 rule, instead it was relying on the 2022 rule. The ACLU then filed a motion to hold the state in civil contempt, a rare measure.

It its filing, the ACLU asks that the state be forced to explain to a judge why it should not be held in contempt, and further asks Moses to order the department comply with the preliminary injunction and the Supreme Court order that mandated the 2017 rule.

The ACLU is also asking that within 10 days of granting the motion, that DPHHS issue a copy of the court’s order to every “agent, officer, and employee of DPHHS with any responsibility for processing requests to amend birth certificates,” as well as reasonable attorneys’ fees arising out of the legal wrangling that has bounced between the district and Supreme Court.

The Montana Attorney General’s Office, which is representing the DPHHS, did not immediately respond to a request for comment on the case.

The ACLU released this statement after filing the motion:

 

“The State now flouts three judicial orders: two from the District Court and one from the highest court in Montana. The State’s actions betray its lack of respect for the judiciary and utter disregard and disrespect for the transgender Montanans seeking to have a birth certificate that accurately indicates what they know their sex to be. The motion filed today is simply asking the Department of Public Health and Human Services to do what they’ve repeatedly been ordered to do.”

230125 Plaintiff's Motion to Enforce BIS Aff dkt #104 (2)

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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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