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Helena, Mengshan. (AP) — After months of defiance, the Montana health department said today it will follow a judge’s decision to temporarily allow transgender people to change their gender on their birth certificates.
A judge issued a scathing order this morning, saying health officials “willfully violated” his order telling them to temporarily stop enforcing a law that prohibits transgender people from changing the sex on their birth certificate unless they undergo surgery .
District Court Judge Michael Moses said today that he will immediately consider a contempt motion based on continuing violations of his April order, which he clarified in an oral order at a hearing on Thursday.
Just hours after that hearing, the Republican-run state said it would ignore the order and maintain a rule that would not allow any changes to birth certificates unless they were due to a clerical error.
This afternoon, the Department of Public Health and Human Services issued a statement saying it will comply with the order, despite disagreeing with it.
At Thursday’s hearing, attorneys for the state argued that blocking the law would not prevent the health department from enacting new administrative rules.
Moses wrote that the state “engaged in unnecessary legal gymnastics in an attempt to justify their actions and their willful violations of the order.” He called the state’s interpretation of his previous order “pretty absurd.”
“The Department stands by its actions and analysis of the April 2022 preliminary injunction decision, which, as stated in its rulemaking, addresses the court’s Critical regulatory loophole.” The agency is considering the next steps in the lawsuit, the statement said.
“Unfortunately, it took two very clear court orders and months to comply with the law,” said Alex Wright, an attorney with the ACLU of Montana. The ACLU represents the plaintiffs, and the two want to Transgender people changing their birth certificates.
“But today’s announcement is definitely a step up from the perspective of trans Montanaians seeking to obtain accurate identification,” Rate said.
Ebelt did not respond to an email asking when the state might begin processing applications. Rate doesn’t know how many people have tried to correct their birth certificates in recent months, but he does know the court has been contacted until today after the April ban.
In April, Moses temporarily blocked a law passed by the Republican-controlled 2021 legislature that would require transgender residents to undergo surgery and obtain a court order before they can change their gender on a birth certificate. He said the law’s ambiguity was unconstitutional because it didn’t specify what kind of surgery would be required.
Instead of reinstating a 2017 rule that allowed transgender residents to file an affidavit with the health department to correct their gender on their birth certificate, the state enacted a rule that a person’s gender cannot be changed even after undergoing surgery.
Moses wrote that the health department “refrained for weeks to make corrections to birth certificates, in violation of the order.” The state also did not appeal Moses’ ruling.
Due to the state’s inaction, the ACLU of Montana sought judicial clarification.
Moses’ order today includes a copy of the 2017 rules.
“If the defendants need further clarification, they are welcome to ask the court and not engage in activities that constitute an unlawful violation of the order,” Moses wrote.
Carl Tobias, a former University of Montana Law professor who is now a professor at the University of Richmond, said it was very unusual for a government agency to so openly flout a judge’s order. When officials disagree with a ruling, the typical response is to appeal to a higher court, he said.
“Appeals are what you consider — not that you can cancel a judge’s order. Otherwise, people won’t obey the law,” Tobias said Thursday. “The system doesn’t work that way.”
The legal battle comes as conservative lawmakers in a number of states, including Montana, have sought to limit the rights of trans people, including banning trans girls from athletics at girls’ schools. Last week, another Montana judge ruled that a law passed by state lawmakers aimed at banning transgender women from participating in women’s varsity sports was unconstitutional.
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