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ACLU asks if Gianforte administration defied court order

Trans Rights sign, transgender
Posted at 9:36 AM, Jun 09, 2022
and last updated 2022-06-09 11:36:42-04

HELENA - The ACLU of Montana wants clarification from a Billings judge on whether the Gianforte administration defied a court order when it published an emergency rule prohibiting transgender Montanans from changing their birth certificates.

In a motion filed Tuesday, the ACLU also requested the judge void the temporary rule and explain what process the Montana state health department must follow regarding changes to sex and gender designations on birth certificates.

The ACLU also requested for the judge to force the state health department to allow transgender Montanans to change the sex and gender markers on their birth certificates through a more simplified process established in 2017.

In April, Yellowstone County District Court Judge Michael G. Moses ordered the Montana Department of Public Health and Human Services to temporarily stop enforcing a 2021 law that made it harder for transgender Montanans to swap an “F” on their birth certificate for an “M”, or vice-versa. The judge’s order came out of a lawsuit brought against the state by two transgender Montanans, who are represented by the ACLU.

Under the 2021 law, transgender Montanans needed to show proof they’d undergone surgery and get a court order before the state would swap their birth certificate sex or gender marker.

The ACLU said the state was supposed to return to the status quo, which the judge’s order identified as the 2017. In contrast to the 2021 law, the 2017 method required just a form and an affidavit from the person seeking the fix.

After the order, some transgender Montanans reached out to the state health department to request changes to their birth certificates. However, the state said legal counsel was reviewing the court order.

At the end of May, the health department issued a temporary emergency rule eliminating any path for transgender Montanans to change either the sex or gender on their birth certificates. The state also said it would also no longer record a person’s gender, and instead birth certificates would record a person’s sex. The Gianforte administration said it intended to make the rule permanent.

The Montana state health department defended the move in a statement the day after it issued the temporary rule.

“The department has an obligation to ensure the accuracy of vital records,” said Jon Ebelt, spokesperson for DPHHS. “The rule obeys the court’s order, addresses a critical regulatory gap and remains consistent with current law, as well as the science.”

In response, the ACLU of Montana said the state was “willfully refusing to comply, and in doing so is showing their true colors – these laws and regulations are about harming transgender Montanans.”