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Montana to temporarily allow transgender people to change gender on birth certificates after previously saying it would defy judge's order

After months of defiance, Montana's health department says it will follow a judge's ruling and temporarily allow transgender people to change the gender on their birth certificates.

The controversy began in April, when District Judge Michael Moses temporarily blocked a law passed by the Republican-controlled legislature that would require transgender residents to undergo a surgical procedure and obtain a court order before being able to change the sex on their birth certificate. Moses said the law, which did not specify what kind of surgery would be required, was unconstitutionally vague.

Rather than returning to a 2017 rule that allowed transgender residents to file an affidavit with the health department to correct the gender on their birth certificate, as ordered by Moses, the state instead issued a rule this summer saying a person's gender could not be changed on a birth certificate at all, unless there was a clerical error.

That rule was finalized earlier in September, prompting the ACLU to ask Moses to rule on whether it violated his April injunction. Moses said on Thursday that it did violate his injunction, adding that his April ruling had been "clear as a bell" and comparing 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."

But just hours after the Thursday hearing, the Republican-run state said it would defy the order. At the Thursday hearing, attorneys for the state argued that the April decision blocking the law did not prevent the health department from promulgating new administrative rules.

In a written order Monday morning, Moses said state health officials had made "calculated violations'' of his order. He added that he would promptly consider motions for contempt based on continued violations. 

In creating a new rule, Moses wrote, the state engaged "in needless legal gymnastics to attempt to rationalize their actions and their calculated violations of the order." He called the state's interpretation of his earlier order "demonstrably ridiculous."

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

"If defendants requires 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.

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

"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," said Jon Ebelt, spokesperson for the health department.

The agency is considering its next steps in the litigation, the statement said.

"It's unfortunate that it has taken two very clear court orders and many months to comply with the law," said Alex Rate, an attorney with the ACLU of Montana. The ACLU represents the plaintiffs, two transgender people who want to change their birth certificates. 

"But from the perspective of transgender Montanans who are seeking to obtain accurate identity documents, today's announcement is certainly progress," Rate said.

Ebelt did not respond to an email asking when the state might start processing applications. Rate did not know how many people have sought to correct their birth certificate in recent months, but he was aware of people who had contacted the court after the April injunction and up through Monday.  

Such open defiance of a judge's order is very unusual from a government agency, said Carl Tobias, a former University of Montana Law School professor now at the University of Richmond. When officials disagree with a ruling, the typical response is to appeal to a higher court, he said.

"Appeal is what you contemplate — not that you can nullify a judge's orders. Otherwise, people just wouldn't obey the law," Tobias said Thursday. "The system can't work that way."

The legal dispute comes as conservative lawmakers in numerous states including Montana have sought to restrict transgender rights, including banning transgender girls from competing in girls school sports. A different Montana judge last week determined a law passed by state lawmakers seeking to ban transgender women from participating on female collegiate sports teams was unconstitutional.

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