Montana’s health department said Monday it will comply with a court order and temporarily allow transgender people to modify the gender on their birth certificates, after months of defiance.
The judge issued an order Monday morning criticizing health officials for not following his previous temporary order, which told them to stop stopping transgender people from changing their gender on their birth certificates unless they had undergone surgery.
District Court Judge Michael Moses said on Monday that he would quickly consider any motions for contempt based on continued violations of his April order. He clarified the order verbally at a hearing on Thursday. Just hours after that hearing, the Republican-run state announced that it would defy the order and keep in place a rule that disallowed any changes to birth certificates unless they were due to a clerical error.
Despite disagreeing with the order, the Department of Public Health and Human Services released a statement on Monday afternoon announcing that it would comply.
On Thursday, during the hearing, attorneys representing the state had argued that if the law was blocked, it wouldn’t stop the health department from creating new administrative rules.
In his statement, Moses wrote that the state was engaged “in needless legal gymnastics to attempt to rationalize their actions and their calculated violations of the order.” He criticized the state’s take on his previous instruction as “demonstrably ridiculous.”
“It’s unfortunate that it has taken two very clear court orders and many months to comply with the law,” said Alex Rate, an attorney with the ACLU of Montana stating that the ACLU represents two transgender plaintiffs who want to change their birth certificates.
“But from the perspective of transgender Montanans who are seeking to obtain accurate identity documents, today’s announcement is certainly progress,” Rate 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,” said Jon Ebelt, spokesperson for the health department. The agency is considering its next steps in the litigation, the statement said.
Ebelt ignored an email requesting information about when the state might start processing applications. Rate was unaware of how many people have recently attempted to correct their birth certificate, but he knew of individuals who had reached out to court after the April injunction through Monday.
Last month, Moses impeded a law that the Republican Party implemented in 2021. The said law would make it mandatory for transgender individuals to have surgery and receive a court order before being able to revise the sex on their birth certificate. He commented that the legislation was unclear and ambiguous as it did not mention what type of surgery would be necessary.
The state issued a rule that sex cannot be changed on a birth certificate, which is different from the past policy of letting transgender residents file an affidavit with the health department to request the change.
In violation of the order, the health department refused to issue corrections to birth certificates for weeks, wrote Moses. The state did not appeal Moses’ ruling either.
The ACLU of Montana had called for the judicial clarification because the state’s inaction had left it unaddressed. A copy of the 2017 rules was included in Moses’ order on Monday.
“If defendants requires further clarification, they are welcome to request it from the court rather than engage in activities that constitute unlawful violations of the order,” Moses wrote.
Carl Tobias, a professor at the University of Richmond and former University of Montana Law School professor, said that such open defiance of a judge’s order is very unusual from a government agency. He said that when officials disagree with a ruling, the typical response is to appeal to a higher court.
Tobias said Thursday, “Appeal is what you contemplate — not that you can nullify a judge’s orders. Otherwise, people just wouldn’t obey the law. The system can’t work that way.
The legal dispute comes as conservative lawmakers in numerous states including Montana have sought to restrict transgender rights, including banning transgender girls from competing in girls school sports. A different Montana judge last week determined a law passed by state lawmakers seeking to ban transgender women from participating on female collegiate sports teams was unconstitutional.