HELENA, Mont. – After months of opposition, Montana’s health department said Monday it will follow a judge’s ruling and temporarily allow transgender people to change the gender on their birth certificates.
The judge issued a scathing injunction Monday morning saying health officials had made “calculated violations” of his warrant, ordering them to temporarily stop enforcing a law that blocks transgender people from changing their gender on their birth certificates unless they have a have undergone surgery.
District Court Judge Michael Moses said Monday he would immediately consider motions for contempt based on continued violations of his April warrant, which he clarified in an oral warrant during a hearing Thursday. Just hours after that hearing, the Republican-led state said it would defy the order and enforce a rule banning changes to birth certificates unless they were due to a clerical error.
On Monday afternoon, the Department of Health and Human Services issued a statement saying it would comply with the order despite disagreeing with it.
During Thursday’s hearing, state attorneys had argued that blocking the law did not prevent the health department from promulgating new administrative rules.
The state, Moses wrote, engaged in “unnecessary legal gymnastics to try to rationalize their actions and their calculated violations of the warrant.” He called the state’s interpretation of his earlier order “demonstrably ridiculous.”
“The department stands by its actions and analysis regarding the April 2022 preliminary ban decision, as set forth in the regulation addressing critical regulatory gaps left by the court,” said Jon Ebelt, spokesman for the health department. The agency is considering next steps in the lawsuit, the statement said.
“It’s a shame it took two very clear court orders and many months to comply with the law,” said Alex Rate, an attorney with the ACLU of Montana. The ACLU represents the plaintiffs, two transgender people who want to change their birth certificates.
“But from the perspective of transgender Montanans seeking accurate identity documents, today’s announcement is certainly an improvement,” Rate said.
Ebelt did not respond to an email asking when the state would be able to process applications. Rate didn’t know how many people had tried to correct their birth certificates in the past few months, but he was aware of people who contacted the court after the order from April to Monday.
In April, Moses temporarily blocked a law passed by the Republican-controlled legislature of 2021 that would require transgender residents to undergo surgery and obtain a court order before being able to change the gender on their birth certificates. He said the law was unconstitutionally vague because it didn’t specify what kind of surgery would be needed.
Rather than return to a 2017 rule that allowed transgender residents to file an affidavit with the health department to correct the gender on their birth certificates, the state instead issued a rule stating that a person’s gender cannot be corrected. could be changed even after surgery.
The health department “refused corrections to birth certificates for weeks in violation of the order,” Moses wrote. The state also did not appeal Moses’ ruling.
Montana’s ACLU had sought court clarification over the state’s inaction.
Moses’ order on Monday included a copy of the 2017 rules.
“If defendants need further clarification, they are welcome to ask the court instead of engaging in activities that constitute unlawful violations of the warrant,” Moses wrote.
Such open opposition to a 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 ruling, the typical response is to appeal to a higher court, he said.
“Appeal is what you’re considering – not that you can override a judge’s orders. Otherwise people just wouldn’t obey the law,” Tobias said on Thursday. “The system can’t work that way.”′
The legal dispute comes as conservative lawmakers in numerous states, including Montana, have attempted to restrict transgender rights, including banning transgender girls from participating in girls’ school sports. Another Montana judge ruled last week that a law passed by state lawmakers seeking to ban transgender women from participating in female collegiate sports teams is unconstitutional.