Health department defies court order over transgender birth certificate changes

A district court judge has ordered the state health department to rescind a rule that bars transgender residents from amending the gender marker their birth certificates. The health department is defying that order.

During a hearing in district court Thursday, Judge Michael Moses rebuked the state health department for recently enacting the rule that prevents trans Montanans from amending their gender markers.

“And if we are simply going to circumvent orders of the court, where the court finds preliminarily a violation of the constitution – that’s not what justice is all about.”

State health officials adopted the rule saying Moses didn’t give the state clear direction in response to an ordered pause on a state law regulating birth certificates. The agency then adopted the rule that only allows amendments for clerical mistakes, saying gender can’t change. The rule received strong pushback during a public hearing in June.

Moses said state health department officials were “thumbing their nose” at his previous order and that his direction was clear to return to a policy that allows for birth certificate amendments.

Moses ruled from the bench Thursday that the department cannot enforce its new rule. A few hours later, health department director Charlie Brereton said the rule will stay in place while the department considers next steps.

Spokesperson Jon Ebelt said the department has not yet received a written order from the judge and did not indicate whether the department will comply when it does.

Akilah Lane with ACLU of Montana, representing the plaintiffs, said a bench ruling carries the same weight as a written order even though Judge Moses hasn’t signed it yet.

“He made it very clear where he stood on the issues. And so there can be no doubt as to the department’s responsibilities,” Lane said.

The plaintiffs are charged with drawing up an order for Judge Moses to sign in the coming days.