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Montana to allow transgender people to alter birth certificates

HELENE, Mont. – After months of defiance, the Montana 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 had committed “calculated violations” of his order, which had asked them to temporarily halt enforcement of a law that bars 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 contempt motions based on continued violations of his April order, which he clarified in an oral order at a hearing Thursday. Just hours after that hearing, the Republican-led state said it would defy the order and maintain a rule that would not allow changes to birth certificates unless they were due to a clerical error.

Judge Michael Moses issued an order Monday morning saying health officials committed
Judge Michael Moses issued an order Monday morning saying health officials committed “calculated violations” of his order.
AP

On Monday afternoon, the Department of Public Health and Human Services issued a statement saying it would comply with the order, although it disagreed.

During Thursday’s hearing, prosecutors had argued that the deadlock on the law does not prevent the health department from issuing new administrative regulations.

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

“The Department stands by its actions and analysis regarding the April 2022 injunction, as set out in its rulemaking, which addressed critical regulatory gaps left by the court,” said Jon Ebelt, spokesman for the Department of Health. The agency is considering its next steps in the litigation, the statement said.

“It is unfortunate that it took two very strong court orders and many months to comply with the law,” said Alex Rate, an attorney with the Montana ACLU. The ACLU is representing the plaintiffs, two transgender people who want to change their birth certificates.

“But from the perspective of transgender Montanans looking for accurate identity documents, today’s announcement is certainly a step forward,” Rate said.

Ebelt did not respond to an email asking when the state might start processing applications. Rate didn’t know how many people had tried to correct their birth certificates in recent months, but he did know of people who had contacted the court after April’s restraining order and through Monday.

Montana Assistant Attorney General Katie Smithgall, right, speaks in the state district court in Billings, Montana on September 15, 2022.
Montana Assistant Attorney General Katie Smithgall, right, speaks in the state district court in Billings, Montana on September 15, 2022.
AP

In April, Moses temporarily blocked a law being passed by the Republican-controlled legislature of 2021 that would require transgender residents to undergo surgery and obtain a court order before they can change the gender on their birth certificate . He said the law was unconstitutionally vague because it didn’t specify what type of surgery was required.

Instead of reverting 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 enacted a rule stating that a person’s gender can be changed even after surgery must not be changed.

The health department “refused for weeks to issue corrections to birth certificates, in violation of the order,” Moses wrote. The state did not appeal Moses’ sentence either.

Judge Michael Moses asked health officials to stop preventing transgender people from changing their gender on birth certificates unless they had surgery.
Judge Michael Moses asked health officials to stop preventing transgender people from changing their gender on birth certificates unless they had surgery.
AP

The Montana ACLU had sought judicial clarification over state inaction.

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

“If defendants require 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 disregard for a court order is very unusual for 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 verdict, the typical response is to appeal to a higher court, he said.

“Objection is what you’re considering – not that you can vacate a judge’s orders. Otherwise people just wouldn’t follow the law,” Tobias said on Thursday. “The system can’t work like that.”′

The lawsuit 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 last week found a law passed by state lawmakers to ban transgender women from participating in female collegiate athletic teams is unconstitutional.

https://nypost.com/2022/09/20/montana-to-allow-transgender-people-to-change-birth-record/ Montana to allow transgender people to alter birth certificates

JACLYN DIAZ

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