Judge chides Montana for refusing order on transgender law

Posted at 4:05 PM, September 19, 2022 and last updated 3:05 PM, July 14, 2023

By AMY BETH HANSON Associated Press

HELENA, Mont. (AP) — A Montana judge issued a scathing ruling Monday saying state health officials made “calculated violations” of his order to temporarily stop enforcing a law to prevent transgender people from changing the gender on their birth certificate unless they had undergone surgery.

District Judge Michael Moses said he would promptly consider motions for contempt based on continued violations of his April order, which he clarified in a verbal order at a hearing on Thursday. Just hours after that hearing, the Republican-run state said it would defy the order.

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. (AP Photo/Matthew Brown)

During Thursday’s hearing, attorneys for the state argued that blocking the law did not prevent the health department from promulgating new administrative rules.

The state, Moses wrote, 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.”

The state Department of Public Health and Human Services and the Attorney General’s Office did not immediately respond to an email Monday seeking comment.

“All that’s left is for the department to comply with the order and if they don’t, the consequences are clear,” said Alex Rate, an attorney for the American Civil Liberties Union of Montana, which is representing the two transgender plaintiffs who want to change the gender marker on their birth certificates.

In April, Moses temporarily blocked a law passed by the Republican-controlled 2021 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. He 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, the state instead issued a rule saying a person’s gender could not be changed at all, unless there was a clerical error.

American Civil Liberties Union (ACLU) attorney Malita Picasso is seen after presenting arguments against a state rule that prevents transgender people from changing their birth certificates during a hearing in Montana District Court, Thursday, Sept. 15, 2022, in Billings, Mont. A judge struck down the rule. (AP Photo/Matthew Brown)

The health department “refused to issue corrections to birth certificates for weeks in violation of the order,” Moses wrote.

The ACLU of Montana had requested the judicial clarification due to the state’s inaction.

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.

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.


Associated Press reporter Matthew Brown in Billings, Montana, contributed to this story.