On transgender birth certificates Montana defies order

An agency spokesperson said the department is waiting to see the judge’s written order before considering its next steps and Brereton last week said that the agency was keeping the rule it issued in place.

With the agency’s stance, ACLU attorney Malita Picasso expressed dismay and said officials should immediately start processing requests for birth certificate changes. 

“There was a lack of clarity in the court’s ruling from the bench. After this morning’s hearing it’s shocking that the department would allege”, Picasso said. 

“To the 2017 policy anything short of that is a continued flagrant violation of the court’s order” and “it was very clear that Judge Moses expressly required a reversion”. 

Carl Tobias, a former University of Montana Law School professor now at the University of Richmond said Such open defiance of the judge’s order is very unusual from a government agency. 

He said the typical response is to appeal to a higher court when officials disagree with a ruling.

Tobias said, “Appeal is what you contemplate, not that you can nullify a judge’s orders”. Otherwise, people just wouldn’t obey the law”. “The system can’t work that way.”

To contempt of court charges Tobias said the move could leave state officials open, for offenders which in some cases can lead to jail time. Between a recalcitrant agency and the judge were likely aware of the potential consequences but were “caught in the middle he added that the attorneys representing the state”.

To restrict transgender rights in numerous states the legal dispute comes as conservative lawmakers and have sought, including with bans on transgender girls competing in girls school sports.

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

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

His April ruling had been “clear as a bell” during Thursday morning’s hearing Moses said 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. “They can do anything they want. I’m a bit offended by what the department thinks.”

Amelia Marquez, said she was disgusted by the state’s response to one of the plaintiffs in the case.

She said that “We have people that think they’re above the law and don’t have to listen to the judiciary branch of our government”.

To defy the court order after learning the state planned, Shawn Reagor with the Montana Human Rights Network said the organization “will not stand by while from the courts the Gianforte administration blatantly disregards rulings to continue a vindictive attack on the trans community.”

Similar to what Montana has pursued only Tennessee, Oklahoma and West Virginia have sweeping prohibitions against birth certificate changes, advocates for transgender rights say. In 2020 Bans in Idaho and Ohio were struck down.  

In favor of the 2021 law a Republican lawmaker who voted suggested Moses was biased in favor of the plaintiffs in the case. By former Gov. Steve Bullock, a Democrat, Moses was appointed to the court.

Sen. Greg Hertz of Polson said in a statement “Like clockwork, Judge Moses issued yet another predetermined order without thoroughly engaging with the legal issues at hand”.

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. Last week that rule was made permanent. 

From making rules the state argued the injunction did not prevent the health department, but under case law Moses said the injunction reinstated the 2017 rules and any other changes are on hold while the case is decided.

In bad faith state officials denied that the new rule preventing birth certificate changes was adopted. After the 2021 law was blocked the state came up with the new rule to fill a gap in regulations, said Montana Assistant Solicitor Kathleen Smithgall.

Kyler Nerison, a spokesperson for Attorney General Austin Knudsen said “Judge Moses mischaracterized the words of his own order, the parties’ motives, and the state of the law”.

Source:- https://usnewscap.com/on-transgender-birth-certificates-montana-defies-order/