Montana DPHHS is violating court order regarding transgender birth certificates, says ACLU

About a month after a court order, still no birth certificate fix for transgender Montanans
Montana birth certificate law affecting transgender citizens
Posted at 1:46 PM, May 17, 2022
and last updated 2022-05-17 15:47:34-04

HELENA — The ACLU of Montana is threatening the state health department with legal action if it does not comply with a judge’s April order regarding transgender birth certificate changes.

The Montana Department of Public Health and Human Services is already entangled in a lawsuit with the ACLU over a 2021 law requiring transgender Montanans to get surgery and a court order before the state would change the sex designation on their birth certificate. On April 21, a Yellowstone County judge said the health department could not enforce the law until the court decided whether it was constitutional.

The judge ordered the health department to return to the “status quo,” which the court said was a 2017 rule that allowed people to get an updated birth certificate if they submitted an affidavit and a gender designation form.

Montana not allowing transgender Montanans to change their sex birth certificates despite court ruling

The state health department took the gender designation form down from its website after the 2021 law went into effect. After the judge’s order, the form was not reposted and staff at the state birth and death certificates office did not provide a form to MTN News when it was requested.

In a statement Tuesday, the ACLU said “…the state’s willful indifference to the court order is inexcusable.”

DPHHS did not immediately respond to questions about the ACLU’s threat of further legal action.

In response to a records request from MTN News, the state health department provided a copy of the response it sent people requesting information about changing the sex designation on their birth certificate. In the original response, the health department said its office was reviewing the court order and working with the Montana Department of Justice to “understand the implications of the decision on our program.”

“We will contact you once we are able to discuss your options,” the response said.

An updated response was created May 4, which was about 100 words shorter and did not promise the department would be in contact.

“The fact that the state refused to revert to the previous processes,” the ACLU said in its statement. “Evidences its lack of respect for the judiciary and utter disregard for the transgender Montanans who seek to have a birth certificate that accurately indicates what they know their sex to be.”

The 2021 law requiring surgery and court proceedings to change a person’s birth certificate was created by Senate Bill 280. The bill passed the 2021 Montana Legislature by three votes in the Senate and eight in the House. All “yes” votes came from Republican lawmakers. Gov. Greg Gianforte signed the bill into law in April 2021.

In July 2021, two transgender Montanans sued and said the law violated their constitutional rights. They requested a temporary pause on enforcement of the law until the lawsuit was settled. Yellowstone County District Court Judge Michael G. Moses granted their request about a year after Gianforte signed it into law. Moses granted the injunction based, in part, on the law’s vagueness. For instance, the law does not define what kind of surgery qualifies for an amended birth certificate. Plaintiffs also presented sufficient evidence that transgender Montanans could be harmed without an accurate birth certificate, Moses said.

“A mismatch between someone’s gender identity and the information on their birth certificate may even subject them to violence,” Moses wrote in his order.

After the law was enacted, the health department changed the 2017 administrative rule that allowed people to amend their birth certificates by completing a Gender Designation Form and Affidavit for Correction of a Vital Record.

Montana state health department spokesperson Jon Ebelt said in an email Friday any requests for an amended birth certificate are on hold while the state reviews the preliminary injunction.