Court likely to declare birth certificate rule unconstitutional and hold state agency in contempt

Ruling expected by the end of this month, while State of Montana still not changing birth certificates

By: - June 1, 2023 12:23 pm

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

In a court case dealing with how to change a birth certificate in Montana, previous hearings have been so contentious that the state’s Supreme Court had to step in to clarify to the state how a preliminary injunction works, Thursday’s district court hearing struck a completely different tone.

Thane Johnson, who represented the State of Montana on Thursday, apologized to the court, saying the department understood the rulings and had not followed the orders, while assuring the court it would change course.

Yellowstone County District Court Judge Michael Moses had the hearing on a motion for summary judgment of the two-year-old case that spun out of the 2021 legislature and why the state should be held in contempt for not complying with several court orders.

At issue is how Montanans can change birth certificates. In 2021, the legislature changed the law, saying residents could only change the sex designation on a birth certificate by a “surgical procedure” and a judge’s order, a departure from the 2017 rule that allowed residents to change the marker with a simple, one-page form.

Almost as soon as it was passed, the ACLU of Montana challenged the law, and Moses issued a preliminary injunction that should have halted the new law and kept the 2017 process in place. However, the state repeatedly tried to maneuver around that order by proposing new rules, or saying Moses’ previous orders were unclear.

Despite the state Supreme Court affirming the process Moses used by a unanimous decision, the state has still not relented, and that led attorneys with the American Civil Liberties Union of Montana, which is representing two plaintiffs, to ask Moses to hold the state in contempt and issue an order finding the 2021 law unconstitutional. Thursday’s hearing was meant to address both issues.


Attorneys for the ACLU argued the state should be held in contempt because it refused to acknowledge the orders by the district and state Supreme Court.

“The defendants saying they were not obligated to do so is unprecedented behavior by a state agency and co-equal branch of government,” said ACLU staff attorney Akilah Deernose. “No agency is above the law. Court orders must have meaning and they must be followed. Never to our knowledge has a state agency disregarded a lawful court order. It’s not acceptable for any individual, let alone a state agency.”

Attorneys for the ACLU have asked Moses to hold the department in contemptif granted, an order that may be unprecedented in state legal history – as well as impose sanctions and award attorneys’ fees for the work that has taken a team of lawyers to fight the state’s intransigent position.

Johnson, who arrived at the department in January and took over the case, said it was his top priority to come up to speed on the case and determine how to handle it.

“Today, your honor, I come to you with my hat in hand,” Johnson said, apologizing for how the State of Montana had handled the case.

“It’s very hard to justify non-compliance, and I can only explain it and apologize,” he said.

Johnson told the court that he couldn’t divulge the conversations he’s had with the department due to attorney-client privilege, but he said the attorneys on the case understood the order and agreed there is no legal uncertainty about the rules.

“The law was clear at the time of the original injunction and even clearer in the second order,” Moses said. “The preliminary injunction rule is to be enforced in the same way, and it applies to cases like this all across the U.S.

“The law is clear as a bell and it has been clear for years and was clarified by the Supreme Court. Now, I may not be the sharpest tool in the shed, but when the Supreme Court says what the law is, I follow it and I expect the counsel to follow it.”

Johnson said in 30 years of practice, he’s only stood before the court one other time on possible contempt sanctions and was willing to take whatever the court decided, and only asked that attorneys’ fees be kept “reasonable.”

Deernose clarified with the court that Johnson and the attorneys had been cooperative and the ACLU has advocated for sanctioning the executive department, not the current attorneys.

Even though Johnson apologized and said attorneys for the department were clear on the rule, the Montana Department of Public Health and Human Services, which has oversight for the vital statistics division, has still not reverted back to the 2017 rule change procedure.

The Daily Montanan reached out to the DPHHS on Thursday morning for comment and clarification on its current practice, but received no response by the time of publication.

Summary judgment

Thursday’s hearing also marked a legal strategy shift.

Both sides argued that Senate Bill 280 should be declared void and unconstitutional because the law was so vague that it was impossible to enforce. For example, changing a birth certificate requires a surgical procedure, according to the law, but it doesn’t say what type of procedures suffice. Meanwhile, attorneys for the State of Montana argue that sex cannot be changed by any surgical procedure.

Attorneys for the ACLU also argued that the law does not give enough guidance to an average Montana citizen about how they could comply with the vague law to change a birth certificate, so the law violated a constitutional guarantee of equal protection.

Moses told the attorneys that he would likely issue an order quickly, but stopped short of declaring the law void from the bench. He also appeared pleased that attorneys had finally agreed with the what the law and courts had previously said.

He called Thursday’s hearing “outstanding” and told both sides he appreciated the “civil discussion.”

“The State of Montana took 14 months and the court had looked at this matter and given it a hard look a long, long time ago,” Moses said. “Plaintiffs, you were right.”

Even though it appeared likely that Moses would grant the contempt motion as well as strike down Senate Bill 280, the issue of amending a birth certificate will likely face a new challenge, this time from the 2023 legislature.

Republican Gov. Greg Gianforte recently signed legislation that narrowly defines sex. Several different groups have said they plan to challenge the state’s law, which could violate portions of federal law, leaving Montana open to the possibility of losing federal funding.

Moses will likely rule on this 14-month lawsuit quickly. He is scheduled to retire at the end of the end of the month.

Gianforte has named City of Billings Assistant Attorney Thomas Pardy as Moses’ replacement.

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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.