Montana’s transgender birth certificate debate ongoing

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.

With so much public focus on the jam-packed 2023 Legislature, it’s easy to lose track of one of the state’s many ongoing court cases. But for plenty of Montanans, the stalemate over if and how transgender people can change their birth certificates between “male” and “female” remains front of mind. 

For the last four months of 2022, trans people were able to request those changes from the state health department because District Court Judge Michael Moses had ordered the agency to comply with his earlier ruling blocking a restrictive Republican law from taking effect. While that case over 2021’s Senate Bill 280 proceeds, Moses wrote, the state had to revert to the status quo: the more lenient policy in place before SB 280 was enacted. 

Now that opportunity is once again in limbo. Last month, the state Supreme Court walked a legal tightrope in ruling that while Moses was correct in enforcing the status quo, the judge did not have the authority to override an even more restrictive rule the health department adopted in September, which prohibited amending the listed sex on birth certificates in most circumstances. If that 2022 rule was to be reconsidered, the Supreme Court said, plaintiff attorneys with the ACLU of Montana would need to challenge it directly in Moses’ court. 

Hours after that ruling, state health department Director Charlie Brereton said the agency would again be implementing its latest rule — the one barring most changes to a person’s listed sex — appearing to overlook the part of the court’s decision that affirmed the role of the status quo in the ongoing case. The ACLU of Montana, on the other hand, released a statement doubling down on its stance: that the state should revert to handling change requests like it used to, before SB 280 became law.

Since those conflicting press releases, the health department and ACLU of Montana have remained in a legal standoff in court. Plaintiff attorneys have filed a motion asking the state to explain why its re-adoption of the 2022 rule should not merit a contempt charge from Judge Moses. The state filed its responses Feb. 8, arguing that it has consistently operated “in good faith” and that its use of the 2022 rule is based on its genuine interpretation of court rulings. 

If all of that legal jousting seems too convoluted to follow, the takeaway is this: The health department and attorneys for transgender plaintiffs remain at loggerheads, not just about the constitutionality of the Republican bill, but about what the current policy governing birth certificate changes even is. 

MTFP asked health department spokesperson Jon Ebelt how the department is handling the cases of people who requested document changes last year — people who thought they’d found an open window, only to arrive at an apparent brick wall in January. He declined to comment in an early February email, citing the ongoing lawsuit.