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Montana to continue severely limiting transgender people from changing birth certificates, defying judge's order

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Just hours after a Montana judge blocked health officials from enforcing a state rule that would prevent almost all transgender people from changing the gender on their birth certificate, the state on Thursday said it would defy the order. 

The decision comes as part of a long legal battle between the state and the judge that began in 2021, when the state passed a law saying people had to have a "surgical procedure" before they could change the sex listed on their birth certificate. In April 2022, District Court Judge Michael Moses issued a temporary injunction blocking that law from going into effect. 

On Sept. 9, Gov. Greg Gianforte's administration finalized a new rule that blocked changes to birth certificates entirely, unless there was a clerical error —prompting the Montana ACLU to ask Moses to clarify whether his injunction prevented the state from creating the rule. 

On Thursday, Moses chided attorneys for the state during a hearing in Billings, and said there was no question that state officials violated his earlier order by creating the new rule. Moses also said his order would reinstate a 2017 Department of Public Health and Human Services rule that allowed people to update the gender on their birth certificate by filing an affidavit with the department.

The state argued the injunction did not prevent the health department from making rules, but Moses said under case law the injunction reinstated the 2017 rules and any other changes are on hold while the case is decided.

Moses said his April ruling had been "clear as a bell" and compared the state's subsequent actions to a person twice convicted of assault who tries to change their name following a third accusation to avoid a harsher punishment.

"Isn't that exactly what happened here?" Moses asked. "I'm a bit offended the department thinks they can do anything they want."

However, the state said it would disregard the ruling.

"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. The 2022 final rule that the Department issued on September 9 remains in effect, and we are carefully considering next steps," said Charlie Brereton, director of the Department of Public Health and Human Services.

ACLU attorney Malita Picasso expressed dismay with the agency's stance and said officials should immediately start processing requests for birth certificate changes.

"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," Picasso said. "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."

"We knew from the beginning the Gianforte administration was going against the will of Montanans and the court's orders," said Shawn Reagor, director of equality and economic justice with the Montana Human Rights Network and a member of the transgender community.

After learning the state planned to defy the court order, Reagor said the Montana Human Rights Network "will not stand by while the Gianforte administration blatantly disregards rulings from the courts to continue a vindictive attack on the trans community."

"The judge was very clear the department must go back to the 2017 rule," Reagor said. "This is a clear example of the lack of disregard the administration has for the courts."

Only Tennessee, Oklahoma and West Virginia have sweeping prohibitions against birth certificate changes similar to what Montana has pursued, advocates for transgender rights say. Bans in Idaho and Ohio were struck down in 2020.

A Republican lawmaker who voted in favor of the 2021 law suggested Moses was biased in favor of the plaintiffs in the case. Moses was appointed to the court by former Gov. Steve Bullock, a Democrat.

"Like clockwork, Judge Moses issued yet another predetermined order in favor of liberal plaintiffs without thoroughly engaging with the legal issues at hand," Sen. Greg Hertz of Polson said in a statement.

State officials denied that the new rule preventing birth certificate changes was adopted in bad faith. Montana Assistant Solicitor Kathleen Smithgall said the state came up with the new rule to fill a gap in regulations after the 2021 law was blocked.

"Judge Moses mischaracterized the words of his own order, the parties' motives, and the state of the law," said Kyler Nerison, a spokesperson for Attorney General Austin Knudsen.

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