Judge orders state to allow transgender Montanans to change their sex marker, state says no

Judge halts Montana birth certificate law affecting transgender citizens
Posted at 10:59 AM, Sep 15, 2022

BILLINGS — Gov. Greg Gianforte's administration appeared to ignore a court order Thursday when the state health department said it would not reverse a rule preventing Montanans from changing the sex markers on their birth certificates based on "gender transition, gender identity, or change of gender."

Yellowstone County District Court Judge Michael Moses told the Montana Department of Public Health and Human Services to return to a 2017 process for changing the sex marker on a birth certificate. In contrast to the 2021 law, the 2017 method required a form and an affidavit from the person seeking a correction to their birth certificate.

Moses first ordered DPHHS to return to the 2017 process in April, when Moses ordered a preliminary injunction to pause enforcement of the 2021 law until litigation over the law's constitutionality was settled. The lawsuit was brought by two transgender Montanans represented by the ACLU of Montana.

In response to the preliminary injunction, former DPHHS Director Adam Meier issued an emergency rule to eliminate any path for transgender Montanans to change the sex marker on their birth certificates. On Sept. 9, new DPHHS Director Charlie Brereton made the rule permanent, despite about 100 people voicing opposition to the rule during a public hearing in June. At the same public hearing, two people spoke in support of the rule.

After the emergency rule was issued, the ACLU of Montana asked for Moses to clarify his order and to hold the state in contempt of court if DPHHS had violated the preliminary injunction.

At Thursday's hearing, the state argued the preliminary injunction did not prevent the department from making new rules.

Moses said the Sept. 9 rule was unenforceable under his preliminary injunction and the state must default to the 2017 process for changing the sex marker on a birth certificate. The judge did not hold the state in contempt, as he said he saw no evidence that DPHHS' legal counsel had encouraged the department to circumvent the court order by passing new rules.

In response, Brereton issued a statement calling Moses' April order vague and not in line with the order the judge issued at Thursday's hearing.

"The 2022 final rule that the department issued on Sept. 9 remains in effect," Brereton said in his statement. "And we are carefully considering next steps."

Before hearing the department's response, Montana Human Rights Network Director of Equality and Economic Justice Shawn Reagor said he was relieved by Moses' order because "trans people will be able to update their Montana birth certificate while the court makes a final decision."

After seeing Brereton did not appear about to implement the 2017 process, Reagor said the director's response was "appalling."

"We will not stand by while the Gianforte administration blatantly disregards ruling from the court," Reagor said. "To continue an intentional and vindictive attack on the trans community."

Office of the Attorney General Communications Director Kyler Nerison said in an emailed statement that Nerison believed Moses' "behavior today revealed his extreme prejudice."

In a statement from Sen. Greg Hertz, R-Polson, Hertz said Moses' order was "yet another predetermined order in favor of liberal plaintiffs."

"Improper judicial activism aligned with Democrat operatives continues to be a constant theme in cases involving important policy and political matters in Montana," Hertz said.

The 2021 law requiring surgery and court proceedings to change a person’s birth certificate was created by Senate Bill 280. The bill passed the 2021 Montana Legislature by three votes in the Senate and eight in the House. All “yes” votes came from Republican lawmakers. Gov. Greg Gianforte signed the bill into law in April 2021.

Moses granted the injunction based, in part, on the law’s vagueness. For instance, the law does not define what kind of surgery qualifies for an amended birth certificate. Plaintiffs also presented sufficient evidence that transgender Montanans could be harmed without an accurate birth certificate, Moses said.

“A mismatch between someone’s gender identity and the information on their birth certificate may even subject them to violence,” Moses wrote in his order.

Editor's note: This is a developing story that will be updated.