On the 15th of September, Montana District Judge Micheal Moses blocked health officials from enforcing a state ban preventing transgender people from being able to change their gender on their birth certificates. What would have been a win for LGBTQ+ advocates in the state quickly turned to dismay as just hours after the ruling was made, the state said it would defy it.
This is not the first time Moses has clashed with state officials over the right for people to change their birth certificates. In April, after the ACLU of Montana asked him to intervene concerning the law, he issued a temporary block on a 2021 law passed by the Republican-led state that made it more difficult to change a birth certificate.
Transgender plaintiffs represented by the ACLU of Montana have argued that not having the ability to change their birth certificate to one matching their gender identity places them in danger of discrimination, embarrassment, harassment, and violence should they be asked for their birth certificate.
Similar to the new state rule, the one from last year also targeted primarily trans people by prohibiting changing the sex listed on the birth certificate unless the individual had undergone a “surgical procedure” before making the change. Moses blocked the rule because he found the lack of specificity in what the procedure was to be unconstitutional.
This new rule from Gov. Greg Gianforte’s administration is more extreme because it prohibits any changes to birth certificates, unless there was a clerical error or if someone’s sex is misidentified when they are born. What falls under this classification would be if the sex was wrongly recorded. The category of gender would no longer be recorded by the Department of Public Health and Human Services but rather change that category to list an individual’s sex.
In other words, transgender people living in Montana cannot change their birth certificate for any reason, whether they had a surgical procedure or not.
Moses chided state attorneys over their ruling, stating that it circumvents the order he made in April, and there was no question the new rule from Montana’s Department of Health and Human Services was in violation of it.
Comparisons were made to a convicted person whose attempt to avoid prosecution is changing their name despite multiple offenses, with Moses stating, “Isn’t that exactly what happened here? I’m a bit offended the department thinks they can do anything they want.”
Charlie Brereton, director of the Department of Public Health and Human Services, said regarding the decision was based on evaluating the judge’s “vague April 2022” ruling and called it unfortunate that his order from the 15th did not coincide with the one from April. He also said they are keeping the rule they issued, and a spokesperson from the agency has stated that they are waiting for the judge’s next order before it considers what comes next.
ACLU attorney Akilah Lane called the rule “further evidence of the state’s non-compliance” with Moses’s April order.
Another attorney from the ACLU, Malita Picasso, stated that officials should process requests for birth certification changes immediately while expressing disgust towards the agency.
Picasso said while speaking to the Associated Press, “It’s shocking that after this morning’s hearing the department would allege there was any lack of clarity in the court’s ruling from the bench. It was very clear that Judge Moses expressly required a reversion to the 2017 policy, and anything short of that is a continued flagrant violation of the court’s order.”
Democratic state lawmakers have also responded to the overturning, calling the state administration’s actions a “blatant abuse of power” and making accusations of it undermining the court.
Carl Tobias, a professor at the University of Richmond who used to teach at the University of Montana Law School, has stated the open defiance of a judge’s order was unusual for a government agency to do. According to him, the response would typically be to appeal to a court of a higher power if there was a dispute and not go straight to nullifying the judge’s order.
State officials could be left open to being charged for contempt of court, a crime that can lead to jail time, Tobias also said, adding that state attorneys likely knew the consequences but were caught between the agency and the judge.
This comes during a year when over 300 laws targeting the LGBTQ+ community have been introduced, with over two dozen being passed. Among these are severe restrictions on changing one’s birth certificate being passed in states such as Oklahoma, Tennessee, and West Virginia as well as Florida’s “Don’t Say Gay” bill prohibiting talking about a subject matter relating to the queer community in lower school grades.
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