District Court Judge Michael Moses criticized state attorneys during a hearing in Billings for overruling an April order that temporarily blocked a 2021 Montana law making it harder to change birth certificates. Moses said there was no doubt that state officials violated his previous order by creating the new rule. Moses said his order reinstates a 2017 Department of Health and Human Services rule that allowed people to update the gender on their birth certificate by submitting an affidavit to the department. However, the state said it would ignore the decision. “The Department has thoroughly evaluated the judge’s ambiguous April 2022 decision and crafted our final rule to be consistent with the decision. It’s unfortunate that the judge’s decision today doesn’t match his vague decision in April,” said Charlie Brereton, director of the Department of Public Health and Human Services. Brereton said the agency was sticking to the rule it issued last week in effect, and an agency spokesman said the department was waiting to see the judge’s written order before considering its next steps. ACLU attorney Malita Picasso expressed dismay at the agency’s stance and said officials should immediately begin processing requests for birth certificate changes. “It is shocking that after the hearing this morning the department claimed that there was a lack of clarity in the court’s decision from the bench,” Picasso said. “It was abundantly clear that Judge Moses specifically required the reinstatement of the 2017 policy, and anything less than that is a continued flagrant violation of the court’s order.” Such open flouting of the judge’s order is highly unusual by a government agency, said Carl Tobias, a former University of Montana Law School professor now at the University of Richmond. When officials disagree with a decision, the standard response is to appeal to a higher court, he said. “An appeal is what you think – not that you can overturn a judge’s orders. Otherwise, people just wouldn’t obey the law,” Tobias said. “The system can’t work that way.” The move could leave state officials open to contempt of court charges, which in some cases could lead to jail time for offenders, Tobias said. He added that lawyers representing the state likely knew the potential consequences but were “caught in the middle” between a reckless agency and the judge. The legal battle comes as conservative lawmakers in several states have sought to curtail transgender rights, including banning transgender girls from competing in girls’ school sports. Montana law said people had to undergo “surgery” to be able to change the gender listed on their birth certificate, which Moses ruled was unconstitutional because it didn’t specify what kind of surgery was required. Then Gov. Greg Gianforte’s administration created a new rule that barred changes to birth certificates altogether, unless there was a clerical error. Moses said during Thursday morning’s hearing that his April ruling was “clear as a bell” and compared the state’s subsequent actions to a man with two convictions for assault trying to change his name after a third charge to avoid a harsher punishment. “Isn’t that exactly what happened here?” Moses asked. “I’m a little offended that the department thinks they can do whatever they want.” One of the plaintiffs in the case, Amelia Marquez, said she was disgusted by the state’s response. “We have people who think they are above the law and don’t need to listen to the judicial branch of our government,” he said. After learning the state planned to defy the court order, Shawn Reagor with the Montana Human Rights Network said the organization “will not stand idly by while the Gianforte administration blatantly ignores court rulings to continue a vengeful attack on the transgender community ». Only Tennessee, Oklahoma and West Virginia have sweeping bans against birth certificate changes similar to what Montana is seeking, transgender rights advocates say. Bans in Idaho and Ohio were repealed in 2020. A Republican lawmaker who voted for 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 default order in favor of the liberal plaintiffs without thoroughly addressing 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 issued his temporary order in the case. This rule was made permanent last week. The state argued that the order did not prevent the health department from enacting rules, but Moses said that according to case law the order reinstated the 2017 rules and any other changes are on hold while the case is decided. State officials have denied that the new rule preventing birth certificate changes was adopted in bad faith. Montana Assistant Attorney General Kathleen Smithgall said the state created 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 motives of the parties and the state of the law,” said Kyler Nerison, a spokesman for Attorney General Austin Knudsen.
