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Montana health department now “intends to comply” with judge’s birth certificate order

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The agency had previously said it would continue to bar document changes for transgender people despite a verbal court ruling.

By Mara Silvers MONTANA FREE PRESS

The Montana state health department said Monday it now intends to comply with last week’s district court order in which a Billings judge instructed the agency to reinstate a process for allowing transgender Montanans to update the sex on their birth certificates. 

The announcement represents a shift from the department’s response to an oral bench ruling from Judge Michael Moses last Thursday. Last week, Department of Public Health and Human Services Director Charlie Brereton said the department was awaiting a written copy of the ruling and that the agency would continue to enforce a different rule adopted in September that bars changes to the sex on birth certificates based on a person’s gender identity.

The dispute stems from ongoing litigation over Senate Bill 280, signed into law by Gov. Greg Gianforte, which would make it harder for transgender people to update the sex on their birth certificate. That bill sought to replace a more lenient 2017 administrative rule adopted under former Gov. Steve Bullock. 

During last week’s hearing, Moses told attorneys representing the health department and the ACLU of Montana that he was “clear as a bell” in an April order pausing the law while the case continued and reimplementing the “status quo” from 2017. 

Instead of reverting to the 2017 standard following that April order, the health department enacted an emergency rule allowing a person’s sex designation to be changed only to correct a data entry error or upon submittal of DNA or genetic testing evidence to show that the listed sex is incorrect. The department later adopted a formal version of that rule in September, despite substantial opposition expressed in public testimony. The agency’s leadership has said it sees sex as a “biological concept” that cannot be changed and that its rules help maintain the accuracy of vital records and statistics.

Moses said in last week’s hearing that the department’s decision to enact new rules instead of reverting to the 2017 status quo violated his order and that, in doing so, health officials were “thumbing their nose at orders of courts.” 

The judge reiterated his displeasure with the department’s actions on Monday in his written order, writing that if state officials “require further clarification, they are welcome to request it from the Court rather than engage in activities that constitute unlawful violations of the Order.”

Moses also said that any motions from the ACLU of Montana to hold the department in contempt of court “based on continued violations” of his orders “will be promptly considered.”

The health department has said it has never considered itself in violation of the April injunction, instead arguing that the subsequent, more restrictive rules it created were an attempt to fill a regulatory void created by the judge’s “vague” order. On Monday, the department indicated it still took issue with the ruling.

“The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” the statement said. “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.”

The department also said it is “carefully considering next steps in the litigation.”

Health Department spokesman Jon Ebelt did not immediately respond to an additional question asking what day the department intended to re-implement the 2017 standards. 

Alex Rate, an attorney for the ACLU, said the department should have no issue in reimplementing the old standard while the lawsuit unfolds, but added he’s skeptical that the agency will act in accordance with the intent of the judge’s order. 

“I’m in ‘prove it’ mode,” Rate said in a Thursday phone call. “We need to start processing these applications before I’ll take them at their word.”

Forward Montana, an advocacy group that represents young people and supports transgender rights, also expressed continued frustration at the department’s recent actions. 

“Throughout this whole process, including the DPHHS’s most recent response, the Department has shown clear disdain for the courts, the will of the people, and especially transgender Montanans who are simply trying to live safe, happy lives in our state,” said Izzy Milch, senior advocacy manager with Forward Montana. “Compliance with this court order is a step in the right direction, and we hope that trans Montanans will now have access to accurate ID as this litigation continues to unfold.”

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