Montana agrees to let trans people update their gender markers on birth certificates

Montana officials said Monday that its health department will follow a judge’s ruling and temporarily allow trans people to update their gender markers on their birth certificate — just days after announcing it would disregard the judge’s order.

District Court Judge Michael Moses on Monday said that state health officials made “calculated violations” of an order he issued late last week when announcing their decision to defy it.

On Thursday, Moses clarified a preliminary injunction he had issued in April, ruling that Montana could not prevent transgender individuals from updating their birth certificates while Senate Bill 280 was challenged in court — but state officials said they would not comply with the order.

In a scathing rebuke Monday morning, Moses said that he would consider motions for contempt, following several violations of his April order.

State officials engaged “in needless legal gymnastics to attempt to rationalize their actions and their calculated violations of the order,” Moses wrote on Monday, calling the state’s interpretation of his earlier order “demonstrably ridiculous.”

Last week, Charlie Brereton, director of the state’s Department of Public Health and Human Services, said that “the department thoroughly evaluated the judge’s vague April 2022 decision and crafted our final rule to be consistent with the decision. It’s unfortunate that the judge’s ruling today does not square with his vague April decision.”

Montana District Judge Michael Moses speaks to attorneys during a court hearing on birth certificate changes for transgender people, on Sept 15, 2022, in Billings, Mont. Moses said in a Monday, Sept. 19, 2022, order that state health officials were being "demonstrably ridiculous" as they repeatedly refused to follow his orders to stop enforcing a state rule that would prevent transgender people from changing the gender on their birth certificate. (Matthew Brown/)

Hours after the judge issued his order Monday, the Montana DPHHS issued a statement saying that it would follow the judge’s order, after all.

“The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” department spokesperson Jon Ebelt said in a statement.

“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. Since the Department has now received the court’s clarification, it is carefully considering next steps in the litigation,” Ebelt added.

“It’s unfortunate that it has taken two very clear court orders and many months to comply with the law,” Alex Rate, an attorney with the American Civil Liberties Union of Montana, told The Associated Press.

“But from the perspective of transgender Montanans who are seeking to obtain accurate identity documents, today’s announcement is certainly progress,” Rate added.

The ACLU and its Montana affiliate represent two trans people who want to change the gender marker on their Montana birth certificates.

With News Wire Services