The state on Thursday said it will disobey a court’s ruling only hours after a Montana judge barred health authorities from executing a state regulation that would prohibit virtually all transgender persons from altering the gender on their birth certificate.
The ruling is the result of a protracted legal dispute between the state and the judge that started in 2021 when the state established a rule requiring “surgical procedure” before changing a person’s birth certificate’s specified sex. District Court Judge Michael Moses ordered an interim injunction against the implementation of such statute in April 2022.
The Montana ACLU asked Moses to clarify whether his injunction stopped the state from enacting the rule after Gov. Greg Gianforte’s administration issued a new regulation on Sept. 9 that completely prohibited birth certificate alterations, excluding only clerical errors.
During a hearing in Billings on Thursday, Moses chastised the state’s legal representatives and said that there was no doubt that the new rule was a violation of his prior directive by state authorities. Moses said that the Government of Public Health and Human Services regulation from 2017 will be reinstated by his decision, which allows individuals to amend the gender shown on their birth certificate by submitting an affidavit to the department.
According to Moses, case law mandates that the injunction reinstates the 2017 guidelines and puts any future modifications on hold while the lawsuit is being heard. The state contended that the order did not stop the health department from drafting rules.
Moses characterised his April decision as “clear as a bell” and likened the state’s activities since then to the conduct of someone who has been convicted of assault twice who seeks to alter their identity after a third charge to escape a heavier sentence.
Isn’t that what occurred here, exactly? Moses enquired. I find it a little offensive that the department feels free to act whatever they choose.
The state, however, said that it would ignore the judgement.
“The Department carefully considered the judge’s ambiguous April 2022 ruling before crafting our final rule to be in line with it. It’s regrettable that the judge’s judgement today conflicts with his ambiguous ruling from April.
The Department’s September 9 final regulation for 2022 is still in place, and we are carefully examining our options. “Director of the Department of Public Health and Human Services Charlie Brereton made the statement.
Malita Picasso, an attorney with the ACLU, expressed disappointment with the agency’s attitude and demanded that they begin processing petitions for birth certificate adjustments right now.
Picasso added, “It’s astonishing that the government would claim there was any ambiguity in the court’s judgement from the bench following this morning’s hearing. Anything less than that is a continuing gross breach of the court’s order, according to Judge Moses, who made it very plain that a return to the 2017 policy was essential.
Shawn Reagor, director of equity and economic justice at the Montana Human Rights Network and a member of the transgender community, said, “We knew from the outset the Gianforte administration was going against the will of Montanans and the court’s directives.”
Reagor said the Montana Human Rights Network “would not stand by as the Gianforte administration shamelessly disregards judgments from the courts to continue a vicious onslaught on the trans community” after discovering the state intended to disobey the court order.
The court made it quite apparent that the agency had to return to the 2017 regulation, Reagor said. “This shows how little respect the government has for the courts,” one person said.
Advocates for transgender rights claim that only Tennessee, Oklahoma, and West Virginia have broad restrictions on birth certificate changes akin to what Montana has sought. Ohio and Idaho bans were overturned in 2020.
Moses was said to have been prejudiced in favour of the plaintiffs in the lawsuit by a Republican legislator who supported the 2021 bill. Moses was chosen to serve on the court by former Democratic governor Steve Bullock.
Sen. Greg Hertz of Polson said in a statement, “Like clockwork, Judge Moses delivered yet another predetermined ruling in favour of leftist plaintiffs without adequately engaging with the legal issues at hand.”
State authorities refuted claims that the new regulation prohibiting alterations to birth certificates was passed in bad faith. According to Kathleen Smithgall, assistant solicitor for Montana, the state created the new regulation to close a gap left by the 2021 law’s obstruction.
Kyle said that “Judge Moses mischaracterized the terms of his own order, the purposes of the parties, and the nature of the law.”