Montana will follow judge's order regarding sex marker change process

Montana DPHHS
Posted at 5:27 PM, Sep 19, 2022

HELENA — The State of Montana said Monday they will follow a court order on reinstating a 2017 birth certificate sex marker change process after initially indicating they would not.

On Thursday, State District Judge Michael Moses of Billings ordered the Montana Department of Public Health and Human Services to reinstate the 2017 method until litigation over a 2021 law's constitutionality was settled.

“The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” wrote DPHHS in a statement to MTN on Monday. “The Department stands by its actions and analysis concerning the April 2022 preliminary injunction decision, as set forth in its rulemaking that addressed critical regulatory gaps left by the court. Since the Department has now received the court’s clarification, it is carefully considering next steps in the litigation.”

The lawsuit, brought by two transgender Montanans represented by the ACLU of Montana, challenged Senate Bill 280 which requires surgery and court proceedings to change a person’s birth certificate.

Moses ordered a preliminary injunction to pause enforcement of the 2021 law in April. In that ruling, he said DPHHS needed to return to the “status quo,” which was a 2017 process that required a form and an affidavit from the person seeking a correction to their birth certificate.

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, one person spoke in support of the rule.

Moses later ruled 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.

In response, Brereton issued a statement Thursday 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 last week. "And we are carefully considering next steps."

Moses 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.

Editor's Note: MTN Senior Political Reporter Ashley Nerbovig contributed to this story.