The Montana state health department said Thursday it will not abide a district court judge’s order to temporarily reinstate a 2017 procedure allowing transgender Montanans to update the sex listed on their birth certificates.
Instead, the department said it would continue to enforce a rule it adopted last week that essentially bars any changes to the listed sex on a person’s birth certificate. That new policy, which received vocal opposition in public testimony, dealt a blow to transgender Montanans who want to amend their identification documents to match their gender identity and presentation. Department representatives have said the rule reflects the agency’s stance that sex is a “biological concept” that cannot be changed.
In a court appearance Thursday morning, Billings judge Michael Moses told attorneys representing the state health department that the new rule “circumvented” his preliminary injunction in April ordering the state to halt enforcement of last year’s Senate Bill 280. That bill, signed into law by Republican Gov. Greg Gianforte, also restricted changes to birth certificates.
Plaintiff attorneys from the ACLU of Montana had requested Thursday’s proceeding to clarify the judge’s April order in light of the department’s new rulemaking. Moses said from the bench that his order was “clear as a bell” in directing the state to revert to the 2017 status quo until the constitutional questions in the case could be fully litigated.
“It’s simple and clear. I said ‘all aspects.’ And what was undertaken by the department in this particular case, upon whoever’s idea it was, simply violates this court’s preliminary injunction,” said Moses.
Attorneys representing the health department said the agency had indeed stopped all enforcement of SB 280 and instead created the new rule for handling requests to change birth certificates. Moses dismissed those arguments and rebuked the state for trying to “sneak around” the intent of his order.
The department’s new policy says the changes reflect its belief that sex, unlike a person’s gender identity, is a “biological concept” that cannot be changed. The Montana Human Rights Network called the policy “deeply disturbing.”
“Those rules circumvent the preliminary injunction issued by this court. Clearly do,” Moses said, addressing lawyers representing the state health department and plaintiff counsel from the ACLU of Montana. “The timing by the department is disastrous because they’re simply thumbing their nose at orders of courts.”
Moses’ preliminary injunction represents a temporary order halting enforcement of the 2021 birth certificate law while the case before him, which challenges the law’s constitutionality, proceeds. Preliminary injunctions are commonly issued by judges in civil cases in an effort to maintain the “status quo” of a situation while litigation drags out for months or years.
Moses said Thursday that the status quo in this case was a prior 2017 policy created by the administration of former Democratic Gov. Steve Bullock. That rule allowed transgender people to fill out a short form asking to update the listed sex on their birth certificate. Going back to that standard, Moses said, would avoid the possibility of violating plaintiffs’ constitutional rights if the challenged law were to take effect.
But hours after Moses issued his decision from the bench, Department of Public Health and Human Services Director Charlie Brereton responded with a statement saying the department doesn’t consider its new rule a violation of the judge’s April order and as such would keep it in place.
“The Department thoroughly evaluated the judge’s vague April 2022 decision and crafted our final rule to be consistent with the decision,” Brereton wrote. “It’s unfortunate that the judge’s ruling today does not square with his vague April decision. The 2022 final rule that the Department issued on September 9 remains in effect, and we are carefully considering next steps.”
Shawn Reagor, Director of Equality and Economic Justice at the Montana Human Rights Network, called Brereton’s statement “appalling.”
“We will not stand by while the Gianforte administration blatantly disregards rulings from the courts to continue an intentional and vindictive attack on the trans community,” Reagor said in a written statement. “The judge was very clear the department must go back to the 2017 rule. This is a clear example of the lack of regard the administration has for the courts and its determination to make the lives of transgender people in the state more difficult.”
In response to an additional request for clarification about how Brereton’s statement aligned with the judge’s order, health department spokesman Jon Ebelt said Thursday the agency was “awaiting a written order from today’s hearing, and carefully considering next steps.”
Akilah Lane, one of the ACLU of Montana attorneys representing two transgender plaintiffs in this case, said in a phone interview Thursday that Brereton’s statement was “really unexpected.”
“There was a moment of celebration because it meant that for the time being [transgender Montanas] had some space to breathe without a discriminatory law in place. And the department moved very swiftly to take the wind out of their sails,” she said.
Lane said the counsel for plaintiffs had not yet decided how they would respond to the department’s stance in court, but called Brereton’s statement “pretty brazen.”
“The statement reads as if the department believes that they’re above the law,” she said.
Editor’s note: This article was updated on Thursday, September 15, 2022 to include an additional statement from health department spokesperson Jon Ebelt.
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