|For anyone tracking the ongoing battle over whether and how transgender Montanans can change the listed sex on their birth certificates, Thursday was quite the rollercoaster.Let’s start with the ongoing litigation over Senate Bill 280, the 2021 law that required proof of surgery and a court order to update the sex on birth certificates. The suit was originally filed over a year ago, on behalf of two transgender Montanans. But on Thursday, attorneys for the state health department and the ACLU of Montana appeared before Billings district court judge Michael Moses to resolve an outstanding question: what rule was the health department supposed to be following to process birth certificate changes?Moses seemed highly disgruntled that the question needed to be asked at all. In April, Moses had preliminarily enjoined the enforcement of SB 280 because he agreed with the plaintiffs’ attorneys that it appeared to be unconstitutional. That order instructed the health department to, for the duration of the litigation, revert to the status quo, which, as Moses repeatedly defined it, is “the last actual, peaceable, noncontested condition preceding the pending litigation.” The status quo that was in place before Gov. Greg Gianforte signed SB 280 into law, Moses said with some exasperation this week, was a process created in 2017 which required Montanans to simply fill out a short form requesting a change to the sex on their birth certificate.But ever since the April order, the health department has done anything but revert to the status quo. As first reported by MTN News, the department was not accepting any requests for sex changes on birth certificates for a time following Moses’ order. Then, in May, the department created and enforced a wholly new emergency rule dictating that a person’s listed sex cannot be changed unless in the case of a data entry error or with proof of genetic or DNA testing — making changes for transgender people nearly impossible. Then, last week, the department enacted a permanent version of that emergency rule despite an outcry of opposition and scrutiny in public testimony.On Thursday, state attorneys made the case that the department’s new rule is in compliance with the April order — that it was not, in fact, enforcing any part of SB 280, and that the new policies are well within the department’s rulemaking authority, attorneys said.Moses wasn’t having it.
“The department was enjoined in all aspects” from enforcing SB 280, Moses said, “and decided to pass rules anyway, claiming that they have the power to do whatever they want, notwithstanding an order of the Court. And that really is unacceptable.”
And so, at the end of a roughly 15-minute summary, Moses issued a ruling from the bench reiterating that the 2017 rules “will apply during the course of this litigation.”Hours later, the health department issued a statement responding to the judge’s decision. Director Charlie Brereton said his staff has no plans to stop enforcing the rule it adopted last week, and said nothing of any intent to revert to the 2017 standard as Moses ordered. The more recent rule, Brereton claimed, was in line with the April injunction.“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,” Brereton said.As of midday Friday, it appears the entire process remains in limbo. A plain reading of the 2017 rule and the 2022 rule show they are incompatible: one allows transgender Montanans to change their listed sex based on their gender identity — the other does not. Where the department’s stance leaves the legal proceedings, the plaintiffs, and transgender Montanans more broadly, is also unclear.The most we can promise at this point is to keep readers informed as the saga unwinds.Mara SilversReporter
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