Montana defies transgender birth certificate ordinance

BILLINGS, Mont. (AP) — Just hours after a Montana judge blocked health officials from enforcing a state rule that would prevent transgender people from changing sex on their birth certificate, the state-led Republicans said Thursday he would defy the order.

District Court Judge Michael Moses chastised state attorneys at a hearing in Billings for circumventing his April order that temporarily blocked a 2021 Montana law that made it harder to change birth certificates .

Moses said there is no doubt that state officials violated his earlier order in creating the new rule. Moses said his order reinstates a 2017 Department of Public Health and Human Services rule that allowed people to update the gender on their birth certificate by filing an affidavit with the department.

However, the state said it would not consider the ruling.

“The Department has carefully evaluated the Judge’s vague April 2022 ruling and crafted our Final Rule to be consistent with the ruling. It is unfortunate that the judge’s decision today does not match his vague decision in April, ”said Charlie Brereton, director of the Department of Public Health and Human Services.

Brereton said the agency is keeping the rule it issued last week in place, and an agency spokesperson said the department is waiting to see the judge’s written order before considering its next steps. .

ACLU attorney Malita Picasso expressed dismay at the agency’s stance and said officials should immediately begin processing requests to change birth certificates.

“It is shocking that after this morning’s hearing, the department alleges that there was a lack of clarity in the court’s decision on the bench,” Picasso said. “It was very clear that Judge Moses was expressly requiring a return to the 2017 policy, and anything short of that is a flagrant and continuing violation of the court order.”

Such an open challenge to the judge’s order is highly unusual from a government agency, said Carl Tobias, a former professor at the University of Montana Law School, now at the University of Richmond. When officials disagree with a decision, the typical response is to appeal to a higher court, he said.

“Appeal is what you envision – not that you can overrule a judge’s orders. Otherwise people just wouldn’t obey the law,” Tobias said. this way.”‘

The move could expose state officials to contempt of court charges, which in some cases can result in jail time for offenders, Tobias said. He added that attorneys representing the state were likely aware of the potential consequences but were “caught in the middle” between a recalcitrant agency and the judge.

The legal dispute comes as conservative lawmakers in many states have sought to restrict transgender rights, including banning transgender girls from participating in girls’ school sports.

Montana law said people had to undergo a “surgical procedure” before they could change the sex listed on their birth certificate, which Moses ruled unconstitutional because it didn’t specify what type of procedure was required.

Governor Greg Gianforte’s administration then created a new rule that blocked changes to birth certificates entirely unless there was a clerical error.

Moses told Thursday morning’s hearing that his decision in April was ‘clear as a bell’ and likened the state’s subsequent actions to a person with a double assault conviction trying to change his mind. name after a third charge to avoid a harsher sentence.

“Isn’t that exactly what happened here?” asked Moses. “I’m a little offended that the department thinks they can do whatever they want.”

One of the plaintiffs in the case, Amelia Marquez, said she was disgusted by the state’s response.

“We have people who think they are above the law and don’t have to listen to the judicial branch of our government,” she said.

After learning that the state planned to defy the court order, Shawn Reagor of the Montana Human Rights Network said the organization “will not sit idly by while the Gianforte administration blatantly ignores court decisions. to continue a vindictive attack on the trans community”.

Only Tennessee, Oklahoma and West Virginia have sweeping bans against birth certificate changes similar to what Montana has sued, say transgender rights advocates. Bans in Idaho and Ohio were lifted in 2020.

A Republican lawmaker who voted in favor of the 2021 law suggested Moïse was biased in favor of the plaintiffs in the case. Moses was appointed to the court by former Governor Steve Bullock, a Democrat.

“Like clockwork, Judge Moses issued another pre-determined order in favor of the liberal plaintiffs without fully engaging with the ongoing legal issues,” Sen. Greg Hertz of Polson said in a statement.

The ACLU of Montana had asked Moïse to clarify his order after the state’s health department enacted its new temporary rule effectively banning birth certificate changes a month after Moïse issued his temporary injunction in the ‘affair. This rule was made permanent last week.

The state argued that the injunction did not prevent the health department from making rules, but Moses said that, consistent with case law, the injunction reinstated the 2017 rules and any other changes were suspended while the matter was decided.

State officials have denied that the new rule banning birth certificate changes was passed in bad faith. Montana Assistant Attorney Kathleen Smithgall said the state proposed the new rule to fill a regulatory gap after the 2021 law stalled.

“Judge Moses misinterpreted the words of his own order, the motives of the parties and the state of the law,” said Kyler Nerison, spokesman for Attorney General Austin Knudsen.



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