A health department is seeking an order from the Supreme Court regarding the updating of birth certificates

Despite saying Monday that it “intends to comply” with a Billings judge’s order to allow transgender Montanans to update their birth certificates via a form, attorneys representing the state’s health department late Friday asked the Montana Supreme Court to cancels this order.

In the filing, attorneys for the state Department of Justice representing the Department of Health and Human Services wrote that Judge Michael Moses did not have the authority to block them from enacting an administrative rule that said birth certificates could only be updated in the event of a technical error.

That’s because attorneys, including Attorney General Austin Knudsen, write that the lawsuit that prompted Moses to issue a preliminary injunction in April is only about a 2021 law, titled Senate Bill 280, that would require Montanans to undergo gender confirmation surgery and petition the court to update their vital records. The state’s administrative rulemaking, the attorneys argued, is a separate process that is not affected by this case.

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“Plaintiffs are only challenging a law passed by the legislature and signed by the governor. They now seek relief from a rule duly promulgated by an executive agency,” wrote the attorneys, including Knudsen, Solicitor General David Dewhurst and Assistant Solicitor General Kathleen Smithgall, in addition to Emily Jones, a private contract attorney for the state.

“The district court was limited to deciding the case or controversy before it: the constitutional challenge to the legislative act.”

In a Sept. 15 order from the judge that the health department initially indicated it would oppose, Moses said he was clear in the spring that the state was blocked from “enforcing any aspect of SB 280” and clearly told the state to follow 2017 rule.

The state previously argued that Moses’ original order was vague, something Moses criticized DOJ lawyers in court earlier this month.

“The department was barred from all aspects of (enforcement of the law) and decided to adopt rules anyway, claiming they had the power to do whatever they wanted regardless of a warrant. This is really unacceptable,” Moses said at the time. “And so my order was not obscure. It was clear as a bell. It said ‘all aspects’.”

Transgender Montanans said having incorrect birth certificates could put them at risk of unwanted eviction, creating unsafe stations. Transgender people face a higher risk of violence. The 2017 rule was put in place under a previous Democratic administration.

The Department of Health attempted to issue a rule in 2021 implementing Senate Bill 280. Then, after Moses’ April order, the department held a hearing in June on another emergency rule to block all avenues for making changes unless there was an error in the original document. Although opposition dramatically outweighed support for the rule, the department made it permanent in early September.

DOJ attorneys in Friday’s order hit back at Moses’ criticism of them in court earlier this month.

“During the argument, the district court accused (the health department) of ‘snoodling,’ ‘circumventing,’ and ‘sneaking in.'[ing]” around the preliminary injunction of the district court. Of course, the court had no basis for these allegations other than the fact that DPHHS promulgated the 2022 rule,” the attorneys wrote.

In Friday’s filing, the health department and Justice Department also argued that by requiring the 2017 rule to stand, Moses cuts off their ability to ever implement SB 280 if the state wins the overall lawsuit.

“DPHHS will not be able to enforce SB 280 against plaintiffs or others who have changed their birth certificate, even if DPHHS ultimately succeeds on the merits,” the attorneys wrote. “… A court’s preliminary injunction simply cannot have the effect of freezing the entire government on a particular matter.”

Moses’ order from the judge is part of a lawsuit filed last year where the ACLU of Montana is suing the state on behalf of two transgender Montanans over the 2021 law. The lawsuit is on behalf of Amelia Marquez, a Billings resident and trans man who identifies as like John Doe in court proceedings. It’s against the state of Montana; Republican Governor Greg Gianforte; The state Department of Public Health and Human Services, which processes birth certificates; and Department Director Adam Meyer. Mayer left the position and was replaced by Charlie Brereton.

Friday’s filing said Marquez and Doe are now free to change their birth certificates and that “the state does not have the right to correct the birth certificates for any person who is allowed to change their birth certificate while it is in effect the preliminary injunction”.

At a minimum, the lawyers wrote, they want the Supreme Court to clarify the order applied only to Marquez and Doe.

Moses’ frustration was clear in court when he issued his clarifying order last week, saying, “If we’re just going to bypass the court’s orders when the court finds, in advance, a violation of the Constitution, that’s not basic justice. That is not the purpose of our government.”

Representatives from the DOJ, the health department and Montana’s ALCU could not be reached late Friday.

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