The Montana Department of Health is openly defying a judge’s order blocking a state rule that prohibits transgender people from changing the gender marker on their birth certificates.
On Thursday, Montana District Court Judge Michael Moses clarified an earlier ruling he made in April that temporarily blocked a 2021 state law, signed into effect by Republican Gov. Greg Gianforte, prohibiting changes to gender markers on birth certificates unless an individual provides documentation attesting that they have undergone gender confirmation surgery.
Under Moses’s April ruling, the state of Montana was supposed to be barred from enforcing the law until the dispute over the law’s constitutionality could be resolved by the courts. That means that, for the time being, the state was supposed to revert back to a 2017 rule, adopted under former Democratic Gov. Steve Bullock, that allowed transgender people to change their gender marker by submitting an affidavit attesting that they had undergone a gender transition.
But following Moses’s ruling, the Montana Department of Health enacted a new temporary rule that is would no longer record “gender” on people’s birth certificates, instead replacing that category with a listing for “sex” — referring to a person’s assigned sex at birth — which can only be changed in rare circumstances, such as clerical error.
The rule — which goes even further than the law being challenged — states that sex, unlike gender, is “immutable,” and cannot be changed, even by gender confirmation surgery. That rule, which was made permanent last week, signifies that the Gianforte administration has doubled down on its opposition to legally recognizing transgender individuals’ gender identities.
Currently, three other states — Tennessee, Oklahoma, and West Virginia — have imposed prohibitions on gender marker changes as rigid as Montana’s, although some Republican-led legislatures have proposed similar restrictions. Similar bans in Idaho and Ohio were challenged in court and ultimately struck down in 2020.
Following the health department’s adoption of the rule, the American Civil Liberties Union of Montana, which had sued to block the law, appealed to the court, asking Moses to clarify his earlier ruling.
The ACLU of Montana argued that the department’s new rule flouts Moses’s order. Attorneys for the state argued that the order did not prevent the health department from creating new rules, and denied that the prohibition on any gender marker changes was adopted in bad faith, reports NBC News.
But Moses said in court on Thursday that his ruling had been “clear as a bell,” stating that the 2021 law’s surgical requirement was unconstitutionally vague because it did not specify what kind of surgery was required, and directing the state to resume the 2017 birth certificate policy until the issue is resolved in court in order to avoid a potential violation of transgender individuals’ constitutional rights.
Moses accused the state of deliberately circumventing the court order, comparing its actions to a person with two convictions for assault who tries to change their name following a third offense in order to avoid prosecution.
“Isn’t that exactly what happened here?” Moses asked. “I’m a bit offended the department thinks they can do anything they want.”
But just hours after Moses’s most recent ruling, the health department said it doesn’t consider the new rule barring gender marker changes a violation of the April injunction and will keep enforcing the rule, all the while criticizing Moses’s legal logic.
“The Department thoroughly evaluated the judge’s vague April 2022 decision and crafted our final rule to be consistent with the decision,” Department of Public Health and Human Services Director Charlie Brereton said in a statement. “It’s unfortunate that the judge’s ruling today does not square with his vague April decision. The 2022 final rule that the Department issued on September 9 remains in effect, and we are carefully considering next steps.”
A spokesman for the health department told the Montana Free Press that the agency was “awaiting a written order” from Thursday’s hearing and “carefully considering next steps.” The spokesman did not clarify how Brereton’s earlier statement was in compliance with Moses’s earlier ruling.
LGBTQ advocates were outraged by the health department’s refusal to abide by Moses’s order.
“We will not stand by while the Gianforte administration blatantly disregards rulings from the courts to continue an intentional and vindictive attack on the trans community,” Shawn Reagor, the director of equality and economic justice at the Montana Human Rights Network, said in a statement. “The judge was very clear the department must go back to the 2017 rule. This is a clear example of the lack of regard the administration has for the courts and its determination to make the lives of transgender people in the state more difficult.”
Akilah Lane, one of the ACLU of Montana attorneys representing the two transgender plaintiffs who sued over the 2021 law, told the Free Press that the health department’s actions were “pretty brazen.”
“The statement reads as if the department believes that they’re above the law,” she said.
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