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Montana To Allow Transgender People To Change Birth Record

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HELENA, Mont. (AP) — After months of defiance, Montana’s health department says it is going to follow a judge’s ruling and temporarily allow transgender people to vary the gender on their birth certificates.

In a written order Monday morning, the judge said state health officials had made “calculated violations” of his order earlier this yr to temporarily stop enforcing a state law that might prevent transgender people from changing the gender on their birth certificate.

The health department passed a rule saying nobody could change the sex on their birth certificate unless there was a clerical error. Under the order, transgender residents can obtain a corrected birth certificate by submitting a sworn affidavit to the health department.

THIS IS A BREAKING NEWS UPDATE. AP’s earlier story follows below.

HELENA, Mont. (AP) — A Montana judge issued a scathing ruling Monday saying state health officials made “calculated violations” of his order to temporarily stop enforcing a law to stop transgender people from changing the gender on their birth certificate unless they’d undergone surgery.

District Judge Michael Moses said he would promptly consider motions for contempt based on continued violations of his April order, which he clarified in a verbal order at a hearing on Thursday. Just hours after that hearing, the Republican-run state said it would defy the order.

During Thursday’s hearing, attorneys for the state argued that blocking the law didn’t prevent the health department from promulgating latest administrative rules.

Montana District Judge Michael Moses speaks to attorneys during a court hearing on birth certificate changes for transgender people, on Sept 15, 2022, in Billings, Mont. Moses said in a Monday, Sept. 19, 2022, order that state health officials were being “demonstrably ridiculous” as they repeatedly refused to follow his orders to stop enforcing a state rule that might prevent transgender people from changing the gender on their birth certificate.

The state, Moses wrote, engaged “in pointless legal gymnastics to try and rationalize their actions and their calculated violations of the order.” He called the state’s interpretation of his earlier order “demonstrably ridiculous.”

The state Department of Public Health and Human Services and the Attorney General’s Office didn’t immediately reply to an email Monday searching for comment.

“All that’s left is for the department to comply with the order and in the event that they don’t, the results are clear,” said Alex Rate, an attorney for the American Civil Liberties Union of Montana, which is representing the 2 transgender plaintiffs who want to vary the gender marker on their birth certificates.

In April, Moses temporarily blocked a law passed by the Republican-controlled 2021 Legislature that might require transgender residents to undergo a surgery and procure a court order before having the ability to change the sex on their birth certificate. He said the law, which didn’t specify what form of surgery could be required, was unconstitutionally vague.

Quite than returning to a 2017 rule that allowed transgender residents to file an affidavit with the health department to correct the gender on their birth certificate, the state as an alternative issued a rule saying an individual’s gender couldn’t be modified in any respect, unless there was a clerical error.

The health department “refused to issue corrections to birth certificates for weeks in violation of the order,” Moses wrote.

The ACLU of Montana had requested the judicial clarification attributable to the state’s inaction.

Moses’ order on Monday included a replica of the 2017 rules.

“If defendants requires further clarification, they’re welcome to request it from the court somewhat than engage in activities that constitute illegal violations of the order,” Moses wrote.

Such open defiance of a judge’s order could be very unusual from a government agency, said Carl Tobias, a former University of Montana Law School professor now on the University of Richmond. When officials disagree with a ruling, the standard response is to appeal to the next court, he said.

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

The legal dispute comes as conservative lawmakers in quite a few states including Montana have sought to limit transgender rights, including banning transgender girls from competing in girls school sports. A unique Montana judge last week determined a law passed by state lawmakers searching for to ban transgender women from participating on female collegiate sports teams was unconstitutional.

Associated Press reporter Matthew Brown in Billings, Montana, contributed to this story.

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