Montana allows transgender people to change their birth certificate

September 19, 2022

Montana Loans

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HELEN, Mont. (AP) — After months of defiance, the Montana Department of Health said it would follow a judge’s ruling and temporarily allow transgender people to change gender on their birth certificates.

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

The health department passed a rule that no one could change the sex on their birth certificate unless there was a clerical error. Under the order, transgender residents can obtain a corrected birth certificate by submitting a sworn affidavit to the health department.

THIS IS A BREAKING NEWS UPDATE. AP’s previous story follows below.

HELEN, Mont. (AP) — A Montana judge issued a scathing ruling on Monday saying state health officials committed “calculated violations” of his order to temporarily stop enforcing a law aimed at keeping transgender people out to change sex on their birth certificate unless they have undergone surgery.

District Judge Michael Moses said he would quickly consider contempt motions based on continued violations of his April order, which he clarified in a verbal order at a hearing Thursday. Just hours after that hearing, the Republican-led state said it would defy the order.

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

The state, Moses wrote, engaged “in unnecessary legal gymnastics in an attempt to rationalize their actions and calculated violations of order.” He called the state’s interpretation of his earlier order “grossly ridiculous.”

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

“It’s up to the department to comply with the order and if they don’t, the consequences are clear,” said Alex Rate, attorney for the American Civil Liberties Union of Montana, which represents the two transgender plaintiffs who want to change the gender marker on their birth certificates.

In April, Moses temporarily blocked a law passed by the Republican-controlled 2021 legislature that would require transgender residents to undergo surgery and obtain a court order before they could change their sex on their birth certificate. He said the law, which did not specify what type of surgery would be required, was unconstitutionally vague.

Rather than revert 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 stating that a person’s gender couldn’t be changed at all, unless there was a desk. Mistake.

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

The ACLU of Montana had sought judicial clarification due to state inaction.

Moses’ order on Monday included a copy of the 2017 rules.

“If the defendants need further clarification, they are encouraged to seek it from the court rather than engaging in activities that constitute unlawful breaches of the order,” Moses wrote.

Such an open challenge 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 decision, the typical response is to appeal to a higher court, he said.

“Appeal is what you envision – not that you can overrule a judge’s orders. Otherwise people just wouldn’t obey the law,” Tobias said Thursday. “The system can’t work in this way.”‘

The legal dispute comes as conservative lawmakers in many states, including Montana, have sought 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 to bar transgender women from competing on women’s collegiate sports teams was unconstitutional.

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Associated Press reporter Matthew Brown in Billings, Montana, contributed to this story.