Although it said Monday it “intends to comply” with a Billings judge’s order to allow transgender Montanans to update their birth certificates using a form, lawyers representing the state health department late Friday night asked the Supreme Court of Montana to vacate this order.
In the filing, attorneys from the state Department of Justice representing the Department of Public Health and Human Services wrote that Judge Michael Moses did not have the authority to block them from enacting an administrative rule that birth certificates could only be updated if typographical error. .
That’s because, lawyers including Attorney General Austin Knudsen wrote, the lawsuit that prompted Moses to issue a preliminary injunction in April was only about a 2021 law called Senate Bill 280 that would have required Montanans to undergo gender confirmation surgery and ask the court to update vital records. The state’s administrative rulemaking, the lawyers argued, was a separate process not affected by this case.
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“Plaintiffs challenged only one law passed by the Legislature and signed by the governor. They now seek relief from a rule duly promulgated by an executive agency,” wrote the attorneys, including Knudsen, Solicitor General David Dewhirst and Assistant Solicitor General Kathleen Smithgall, in addition to Emily Jones, a private attorney under contract for the state.
“The district court confined itself to deciding the case or controversy before it: the constitutional challenge to the legislative act.”
In a Sept. 15 bench order that the health department initially indicated it would defy, Moses said he was clear in the spring that the state was barred from enforcing any aspect of SB 280 and clearly told the state to follow through in 2017 rule.
The state had previously argued that Moses’ original order was vague, something Moses reprimanded lawyers from the DOJ for in court earlier this month.
“The department was mandated in all aspects by (law enforcement) and decided to pass rules anyway, claiming they have the power to do whatever they want, despite the mandate. This is truly unacceptable,” said then Moses. “And so my order wasn’t vague. It was clear as a bell. It said ‘all aspects’.”
Trans Montanans have said that having incorrect birth certificates can put them at risk of unwanted outing, creating dangerous stations. Transgender people face a greater risk of violence. The 2017 rule was enacted under a previous Democratic administration.
The health department sought to issue a rule in 2021 to implement Senate Bill 280. Then, after Moses’ order in April, the department held a hearing in June on another emergency rule to rule out all ways to change unless there was an error in the original document. Although opposition dramatically offset support for the rule, the department made it permanent in early September.
Justice Department lawyers in Friday’s order responded to Moses’ criticism of them in court earlier this month.
“Throughout the argument, the district court accused (the health department) of ‘thumbing their nose,’ ‘circumventing,’ and ‘sliding.'[ing]around the district court’s preliminary injunction. Of course, the court had no basis for these charges other than the fact that DPHHS issued the 2022 rule,” the attorneys wrote.
In Friday’s filing, the health department and Justice Department also argued that by requiring the 2017 rule to stand, Moses was cutting off their ability to ever enforce SB 280 if the state won the overall court case.
“DPHHS will not be able to enforce SB 280 against the plaintiffs or others who changed their birth certificate, even if DPHHS ultimately succeeds on the merits,” the attorneys wrote. “…A court’s preliminary injunction simply cannot have the effect of freezing the entire government on a particular issue.”
Moses’ order from the bench is part of a lawsuit filed last year in which the ACLU of Montana sued the state on behalf of two transgender Montanans over the 2021 law. The suit is on behalf of Amelia Marquez, a Billings resident, and a transgender man identified as John Doe in court proceedings. It’s against the state of Montana. Republican Gov. Greg Gianforte. the state Department of Health and Human Services, which handles birth certificates; and division director Adam Meier. Meyer has since stepped down and been replaced by Charlie Brereton.
Friday’s filing said Marquez and Doe are now free to amend their birth certificates and that “the state has no recourse to correct the birth certificates for any person who is allowed to change their birth certificate while the preliminary injunction is in effect ».
At the very least, the lawyers wrote, they want the Supreme Court to clarify the provision that applies only to Marquez and Doe.
Moses’ frustration was clear in court when he issued his clarifying order last week, saying “If we’re just going to override court orders where the court finds, preliminarily, a violation of the Constitution, that’s not a matter of justice. This is not the issue of our government.”
Representatives for the DOJ, health department and ALCU of Montana could not be reached late Friday.