The state Department of Health said Monday it will comply with a District Court judge’s order to allow Montanans to change the gender marker on their birth certificates — after issuing a statement last week in apparent defiance of the judge.
On Monday, Yellowstone County Judge Michael Moses reiterated in a written order that the department must return to the 2017 rule for birth certificate changes. The judge said the department had tried to use “legal gymnastics” to circumvent the same court order last week.
In a reversal from its previous position, the Department of Health and Human Services said in a statement Monday that it would comply with Moses’ order.
“The Department has received the court’s order clarifying the preliminary injunction, and although it disagrees with it, it intends to comply with its terms,” DPHHS said in a statement.
In April, Moses tentatively passed Senate Bill 280, which would have required Montanans to update the gender marker on their birth certificate only after a surgical procedure and a court order. Governor Greg Gianforte signed the bill into law in 2021.
On Monday, DPHHS also defended its actions after the preliminary injunction.
“The department stands by its actions and analysis regarding the April 2022 preliminary injunction decision, as set forth in its rule, which addresses critical regulatory gaps left by the court,” the agency said in a statement. “As the Department has now received the court’s clarifications, it is carefully considering the next steps in the litigation.”
DPHHS was sued by the ACLU, among other plaintiffs, on behalf of two transgender Montanans over 280 SB.
The temporary injunction against SB 280 requires the state to return to the “status quo.” In a court order Thursday and again in a written order Monday, Moses ordered the state to revert to a 2017 rule that allows Montanans to change the gender marker on their birth certificate with a one-page form, until the court dispute continues.
Moses included a copy of the 2017 rule in an exhibit in his filing Monday.
After Moses issued his order Thursday, DPHHS Director Charlie Brereton issued a statement saying the department will continue to follow a final rule published Sept. 9 that prohibits transgender Montanans from being able to update the gender on your birth certificate.
The Sept. 9 rule made permanent an emergency rule that was issued in May that was widely opposed by the public during a hearing in June.
In his order Monday, Judge Michael G. Moses said he was not “persuaded” by the state’s claims that its preliminary injunction “leaves no regulatory process for changing the gender on a birth certificate.”
“The court finds these allegations to be patently ridiculous,” the order said.
“Defendants clearly interpret ‘what existed before the enactment of SB 280’ to mean that they have carte blanche to enact whatever regulations they want, as evidenced by the actions taken by Defendants after the order was issued,” Moses said in his order.
Moses said there can be no “serious argument” the DPHHS regulations passed after SB 280 was enacted “represent a return to the status quo.”
The judge also said the state was engaging in “unnecessary legal gymnastics to try to rationalize its actions and its calculated violations of the order.”
“If defendants’ submissions are found to have merit, Montana’s preliminary injunctions will be rendered moot,” Moses said in Monday’s filing.
Alex Reith, legal director for the ACLU of Montana, said it’s unfortunate that it took two clear court orders and several months for the department to fulfill its responsibilities under the law.
“But from the perspective of transgender Montanans seeking to obtain accurate identification, this is a step in the right direction,” Rathe said.