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| Photo Credit: AP. |
HELENA, Mont. (AP) — After months of defiance, 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 order Monday morning saying health officials made “calculated
violations” of his order, which had told them to temporarily stop enforcing a
law blocking transgender people from changing their gender on their birth
certificates unless they had undergone surgery.
District
Court Judge Michael Moses said Monday he would promptly consider motions for
contempt based on continued violations of his April order, which he clarified
in a verbal order at a hearing on Thursday. Just hours after that hearing, the
Republican-run state said 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.
On Monday
afternoon, the Department of Public Health and Human Services issued a
statement saying it would comply with the order, despite disagreeing with it.
During
Thursday’s hearing, attorneys for the state had argued that blocking the law
did not prevent the health department from promulgating new administrative
rules.
The state,
Moses wrote, engaged “in needless legal gymnastics to attempt to rationalize
their actions and their calculated violations of the order.” He called the
state’s interpretation of his earlier order “demonstrably ridiculous.”
“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.
“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. The
ACLU represents the plaintiffs, two transgender people 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.
Ebelt did
not respond to an email asking when the state might start processing
applications. Rate did not know how many people have sought to correct their
birth certificate in recent months, but he was aware of people who had
contacted the court after the April injunction and up through Monday.
In April,
Moses temporarily blocked a law passed by the Republican-controlled 2021
Legislature that would require transgender residents to undergo a surgical
procedure and obtain a court order before being able to change the sex on their
birth certificate. He said the law was unconstitutionally vague because it did
not specify what kind of surgery would be required.
Rather than
returning to a 2017 rule that allowed transgender residents to file an
affidavit with the health department to correct the gender on their birth
certificate, the state instead issued a rule saying a person’s sex could not be
changed, even after having surgery.
The health
department “refused to issue corrections to birth certificates for weeks in
violation of the order,” Moses wrote. The state did not appeal Moses’ ruling
either.
The ACLU of
Montana had requested the judicial clarification due to the state’s inaction.
Moses’ order
on Monday included a copy of the 2017 rules.
“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.
Such open
defiance of a judge’s order is very unusual from a government agency, said Carl
Tobias, a former University of Montana Law School professor 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 contemplate — not that you can nullify a judge’s orders. Otherwise,
people just wouldn’t obey the law,” Tobias said Thursday. “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.
Associated
Press reporter Matthew Brown in Billings, Montana, contributed to this story.