Montana allows transgender people to change their birth certificates

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HELENA, Mont. (TBEN) – After months of resistance, Montana’s health department says it will follow a judge’s ruling and temporarily allow transgender people to change the gender on their birth certificates.

In a written order Monday morning, the judge said state health officials had committed “calculated violations” of his order earlier this year to temporarily stop enforcing a state law that would prevent transgender people from changing the gender on their birth certificates.

The health department passed a rule that said no one could change the gender on their birth certificate unless there was a clerical error. According to the warrant, transgender residents can obtain a corrected birth certificate by submitting an affidavit to the health department.

THIS IS A BREAKING NEWS UPDATE. Below is TBEN’s previous story.

HELENA, Mont. (TBEN) – A Montana judge issued a scathing ruling Monday saying health officials have made “calculated violations” of his order to temporarily stop enforcing a law to prevent transgender people from changing the gender on their birth certificates unless they have had surgery.

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District Judge Michael Moses said he would immediately consider motions for contempt based on continued violations of his April warrant, which he clarified in an oral injunction during a hearing Thursday. Just hours after that hearing, the Republican-led state said it would defy the order.

During Thursday’s hearing, state attorneys argued that blocking the law did not prevent the health department from enacting new administrative rules.

Montana District Judge Michael Moses speaks with attorneys at a court hearing about changing birth certificates for transgender people, September 15, 2022, in Billings, Mont. Moses said in an order dated Monday, Sept. 19, 2022 that state health officials were “arguably ridiculous” for repeatedly refusing to follow his orders to stop enforcing a state rule that would prevent transgender people from changing the gender on their birth certificates. .

The state’s Department of Health and Human Services and the attorney general’s office did not immediately respond to an email requesting comment Monday.

“All the department has to do to enforce the order and if they don’t, the ramifications are obvious,” said Alex Rate, an American Civil Liberties Union of Montana attorney who represents the two transgender prosecutors. who want to change the gender marking on their birth certificate.

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, which did not specify what kind of surgery would be required, was unconstitutionally vague.

The health department “refused corrections to birth certificates for weeks in violation of the order,” Moses wrote.

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.

The Bharat Express News reporter Matthew Brown in Billings, Montana, contributed to this story.