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Montana Supreme Court splits decision over judge’s actions in transgender birth certificate case

A gavel with a judges hand behind it.
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Republicans created the committee in April 2021 during a separation-of-powers conflict with the Montana Supreme Court.

The Montana Supreme Court issued a split decision Tuesday in part of an ongoing case over how transgender people can amend the sex listing on their birth certificates, leaving all parties in another legal standoff over which rules the state health department can apply when evaluating requests.

In a unanimous ruling written by Chief Justice Mike McGrath on behalf of a five-justice panel, the court said Billings District Court Judge Michael Moses was correct last September in requiring the health department revert to a more lenient 2017 rule in order to abide his preliminary injunction in the case over Senate Bill 280. That Republican-backed bill from the last legislative session required proof of surgery and a court order before an individual can change their listed sex between “female” or “male.”

But the court also said that Moses did not have the authority to block a later, more aggressive rule adopted by the health department barring nearly all birth certificate changes to sex. Plaintiff attorneys, which include the ACLU of Montana, had not challenged the department’s most recent 2022 rules in court as part of their ongoing lawsuit, the court wrote.

“The Preliminary Injunction Order requires DPHHS to maintain the status quo, which reinstates the 2017 Rule for as long as the Preliminary Injunction Order — which DPHHS did not appeal — remains in effect,” the Tuesday Supreme Court ruling said. “However, DPHHS is entitled to relief insofar as the [September order] purports to enjoin DPHHS from engaging in rulemaking, as Plaintiffs have not properly challenged the 2022 Rule under MAPA and its implementation therefore has not been brought before the District Court.”

ACLU of Montana and the state health department issued conflicting statements Tuesday night about where the court’s ruling leaves the state’s current policies for handling changes to birth certificates.

“The Supreme Court’s order confirms that the preliminary injunction granted by the Yellowstone County District Court on April 21, 2022, which remains in effect, restored the 2017 Rule that was in place prior to the state’s passage of SB 280,” said the ACLU of Montana’s statement.

The civil rights group also said that, in accordance with the Supreme Court’s interpretation, their attorneys have challenged the department’s latest 2022 rule as part of the case pending before Judge Moses. The Billings judge has not yet ruled on that petition, which the state health department argued against.

Department of Public Health and Human Services Director Charlie Brereton said Tuesday evening that the state will apply its rule passed in 2022 in light of the court’s ruling.

“The department is pleased the Montana Supreme Court reaffirmed the rule of law, and given the court’s decision, the department will follow and implement its 2022 rule,” Brereton’s complete statement said.

DPHHS spokesperson Jon Ebelt did not respond to additional calls and requests for comment.

Prior to the court’s ruling, the department had spent several months adhering to the rule from 2017, which allowed applicants to fill out a short form and attest to a need to update the sex on their birth certificate without proof of surgery or other medical records. The policy was a rule adopted under the administration of former Democratic Gov. Steve Bullock.

The Tuesday order, and the likely legal action yet to come in Moses’ court, is just the latest twist in the back and forth between transgender Montanans and their advocates and the health department that is part of Republican Gov. Greg Gianforte’s administration.

In the months following Moses’ April order enjoining SB 280, the health department did not reimplement the 2017 rule that plaintiffs said constitutes the status quo in the case. Instead, the agency said the 2017 rule had been replaced by SB 280 and, therefore, could not be resurrected. Instead, the department adopted a more restrictive emergency rule in May that prohibited nearly all changes to the sex category on birth certificates, saying the emergency policy was necessary because of the “ambiguous and uncertain situation” created by Moses’ ruling. Over the objections of public health advocates and transgender Montanans, the department adopted a permanent version of that rule in September.

The department’s actions were the subject of a heated exchange in Judge Moses’ courtroom late that month.

“I said ‘all aspects,’” Moses said during the September hearing, referring to the injunction of SB 280. “And what was undertaken by the department in this particular case, upon whoever’s idea it was, simply violates this court’s preliminary injunction.”

In his written order, Moses called the state’s justification for passing additional rules in 2022 “demonstrably ridiculous” and said that the state had “unlawfully circumvented the entire purpose of a preliminary injunction and disregarded and disrespected the judicial process with these claims.”

The health department stood by its 2022 rule for four days, until Moses’ written order was published, before saying the state would revert to the 2017 rule. Later that week, state attorneys appealed to the state Supreme Court to take over the case from Moses, writing in court filings that the case “cries out for supervisory control.”

In the state’s appeal, attorneys argued the district judge was wrong in ordering the health department to revert to a prior rule after it had adopted a new, contradictory protocol in September. Doing so infringed on the state’s rulemaking authority, attorneys said.

Judge Moses has not indicated when he intends to provide a response to the most recent petitions over whether the 2022 rules should be amended into the ACLU of Montana’s ongoing case.