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Friday January 27th, 2023 6:41PM

Montana judge blocks anti-trans birth certificate rule

By The Associated Press
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BILLINGS, Mont. (AP) — A Montana judge on Thursday blocked health officials from enforcing a state rule that would prevent transgender people from changing the gender on their birth certificate.

District Court Judge Michael Moses chided attorneys for the state during a hearing in Billings for circumventing his April order that temporarily blocked a 2021 Montana law that made it harder to change birth certificates.

Moses said there was no question that state officials violated his earlier order by creating the new rule. The court’s action reinstates 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 legal dispute comes as conservative lawmakers in numerous states have sought to restrict transgender rights, including with bans on transgender girls competing in girls school sports.

The Montana law said people had to have a “surgical procedure” before they could change the sex listed on their birth certificate, something Moses found to be unconstitutional because it did not specify what type of procedure was required.

Gov. Greg Gianforte’s administration then created a new rule that blocked changes to birth certificates entirely, unless there was a clerical error.

“We knew from the beginning the Gianforte administration was going against the will of Montanans and the court's orders. And we are very relieved trans people will be able to update their birth certificate while this court makes a final decision,” said Shawn Reagor, director of equality and economic justice with the Montana Human Rights Network and a member of the transgender community.

“Unfortunately, the harm and stress trans, nonbinary and Two Spirit community members experienced through this avoidable court process is not as easily undone,” Reagor said in a statement Thursday. Two Spirit is a Native American term for people who have both masculine and feminine spirits.

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.”

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.

The ACLU of Montana had asked Moses to clarify his order after the state health department enacted its new temporary rule effectively banning birth certificate changes a month after Moses handed down his temporary injunction in the case. That rule was made permanent last week.

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.

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.

The state health department did not immediately respond to a request for comment on when it might start processing applications for changing birth certificates.

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