The Montana Health Department announced Monday that, after months of opposition, it would abide by a judge’s decision and temporarily permit transgender persons to change the gender on their birth certificates.
According to a harsh order the judge delivered on Monday morning, health officials violated the judge’s decision to temporarily halt implementing a statute prohibiting transgender persons from altering their gender on their birth certificates without having had surgery.
District Court Judge Michael Moses reiterated in a spoken order at a hearing on Thursday that he would swiftly consider arguments for contempt based on ongoing violations of his April ruling. Only a few hours after that hearing, the Republican-run state declared it would violate the ruling and maintain a law prohibiting birth certificate revisions other than those brought on by clerical mistakes.
The Department of Public Health and Human Services said in a statement on Monday that it disagreed with the ruling but will nevertheless follow it.
Attorneys for the state had argued at the hearing on Thursday that the health department could still issue new administrative rules despite the law being blocked.
To justify its acts and deliberate violations of the law, the state, according to Moses, engaged in “needless legal acrobatics.” His earlier order’s interpretation by the state was described as “demonstrably ludicrous” by him.
The health department’s spokesperson, Jon Ebelt, said that the department “stands behind its actions and analysis concerning the April 2022 preliminary injunction judgment, as laid forth in its rulemaking that addressed important regulatory gaps identified by the court.” According to the statement, the agency is debating its next course of action in the lawsuit.
Alex Rate, an attorney with the ACLU of Montana, stated, “It’s regrettable that it has taken two very explicit court orders and several months to comply with the law.” The plaintiffs, two transgender people, seeking to have their birth certificates changed, are represented by the ACLU.
But from the standpoint of Montanans who identify as transgender and want appropriate identification documents, today’s announcement is unquestionably progress, according to Rate.
When asked by email when the state might begin processing applications, Ebelt did not answer. The Rate was unaware of the number of persons who had contacted the court following the April injunction and through Monday, but he was aware of those who had done so recently.
A bill approved by the Republican-controlled 2021 Legislature that would have required transgender citizens to undergo surgery and receive a court ruling before they could change the sex on their birth certificate was temporarily stopped by Moses in April. He said that the law was unconstitutionally ambiguous because it did not define what kind of surgery would be necessary.
The state published a law stating that a person’s sex could not be changed, even after surgery. The 2017 rule that permitted transgender residents to file an affidavit with the health department to modify the gender on their birth certificate was repealed.
In defiance of the directive, Moses said, the health department “refused to issue revisions to birth certificates for weeks.” Moses’ decision was also not challenged by the state.
Due to the state’s inactivity, the ACLU of Montana asked the court for clarity.
Moses’ order from Monday included a copy of the 2017 rules.
“Defendants are welcome to ask the court for additional explanation, if necessary, rather than doing actions that would be considered unlawful violations of the order,” Moses wrote.
Carl Tobias, a former professor at the University of Montana Law School who is now at the University of Richmond, stated that such a blatant violation of a judge’s order is exceptionally unusual from a government entity. He said that officials typically appeal decisions to higher courts when disagreeing.
“Appeal is what you consider, not that you may overturn a judge’s rulings. Tobias stated on Thursday that if not, people simply wouldn’t follow the law. “That’s not how the system operates,”
Origin Of The Legal Dispute
The legal dispute comes when conservative lawmakers in many states, including Montana, have pushed to restrict transgender rights, notably by forbidding transgender females from participating in girls’ school athletics. A second Montana court ruled last week that a measure adopted by the state’s lawmakers to prevent transgender women from competing on female collegiate sports teams was unconstitutional.