ACLU, state lawmakers call DPHHS birth certificate rule unlawful
On Wednesday, the ACLU of Montana and other plaintiffs in a lawsuit challenging new state law Senate Bill 280, filed a motion asking a District Court judge to clarify his ruling temporarily blocking the measure from being enforced. Photo: NBC Montana
BOZEMAN, Mont. — On Wednesday, the ACLU of Montana and other plaintiffs in a lawsuit challenging new state law Senate Bill 280, filed a motion asking a District Court judge to clarify his ruling temporarily blocking the measure from being enforced.
SB 280 would require people present documentation of gender confirmation surgery in order to change the gender marker on their birth certificate.
“Our purpose in filing the motion to clarify is to give the court the opportunity to erase any possible confusion that the (Montana Department Public Health and Human Services) may have,” said Akilah Lane, staff attorney with the Montana ACLU.
This comes after the DPHHS issued a temporary emergency rule, aiming to clarify when changes to birth certificates are allowed, but the ACLU says the rule bans transgender people from being able to update their birth certificates entirely.
“It's really causing the precise injury that the preliminary injunction sought to prevent,” Lane said. “So it's painful.”
DPHHS disagrees -- they say the rule does obey the court order. They claim the court’s decision left them in an “ambiguous and uncertain situation.”
The judge’s ruling ordered DPHHS return to the “status quo,” which the court said is a 2017 administrative rule allowing people to change their birth certificates through an online form.
After SB 280 passed last year, the health department removed the form from their website. DPHHS claims they can’t return to the “status quo,” because that system no longer exists.
“The court did not issue a mandatory injunction directing the department to re-implement the 2017 rule,” DPHHS wrote in the emergency rule. “Accordingly, there is currently no non-enjoined regulatory mechanism by which the department can accept and process birth certificate sex identification amendment applications.”
The new emergency rule only allows changing a birth certificate in instances of misidentification or clerical errors. It does not permit changing a birth certificate based on gender transition, identity, or change of gender.
“It feels like beyond a step back,” said Lane. “It makes it more and more apparent, the animosity and discrimination that the department feels for transgender individuals.”
Several Democratic state lawmakers on the interim committee overseeing the health department also spoke out against the emergency rule. They sent a letter asking DPHHS to immediately rescind the rule, calling it “unlawful.”
They say the emergency rule was adopted without an actual emergency, depriving citizens of their right to participate in the rule-making process.
“It is patently obvious that no such imminent peril could exist,” the letter stated. “Waiting until court action concludes can easily be done and would not result in any imminent danger to public health, safety, or welfare.”
NBC Montana reached out to the health department for comment, but a spokesperson didn’t answer our questions.
The Montana ACLU says now they just have to wait and see how the court responds.
