This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.
The attention of the public is currently fixated on the busy 2023 Legislature, causing it to be simple to overlook one of the numerous ongoing court cases in the state. However, for many residents of Montana, the impasse regarding the ability and process for transgender individuals to modify their birth certificates from “male” to “female” or vice versa, continues to be a prominent concern.
For the last four months of 2022, trans people were able to request those changes from the state health department because District Court Judge Michael Moses had ordered the agency to comply with his earlier ruling blocking a restrictive Republican law from taking effect. While that case over 2021’s Senate Bill 280 proceeds, Moses wrote, the state had to revert to the status quo: the more lenient policy in place before SB 280 was enacted.
Now that opportunity is once again in limbo. Last month, the state Supreme Court walked a legal tightrope in ruling that while Moses was correct in enforcing the status quo, the judge did not have the authority to override an even more restrictive rule the health department adopted in September, which prohibited amending the listed sex on birth certificates in most circumstances. If that 2022 rule was to be reconsidered, the Supreme Court said, plaintiff attorneys with the ACLU of Montana would need to challenge it directly in Moses’ court.
Hours after that ruling, state health department Director Charlie Brereton said the agency would again be implementing its latest rule — the one barring most changes to a person’s listed sex — appearing to overlook the part of the court’s decision that affirmed the role of the status quo in the ongoing case. The ACLU of Montana, on the other hand, released a statement doubling down on its stance: that the state should revert to handling change requests like it used to, before SB 280 became law.
Following the issuance of contradictory press releases, the health department and ACLU of Montana have been engaged in a legal dispute within the court system. The plaintiff’s attorneys have submitted a motion, urging the state to clarify why their re-adoption of the 2022 rule should not be considered contemptuous by Judge Moses. On February 8th, the state presented its responses, asserting that it has consistently acted in good faith and that its utilization of the 2022 rule is founded on a genuine interpretation of court decisions.
If the intricate legal disputes seem too confusing to comprehend, here’s the main point: The health department and attorneys representing transgender plaintiffs are still in disagreement, not only regarding the constitutionality of the Republican bill, but also regarding the existing policy regarding birth certificate changes.
In an email response received in early February, Jon Ebelt, spokesperson for the health department, declined to comment on how the department is managing the cases of individuals who sought document modifications last year. These individuals believed they had discovered a potential solution, only to encounter an apparent obstacle in January. Ebelt cited the ongoing lawsuit as the reason for his refusal to provide further information.
