Health Department requests Supreme Court stay Judge’s order on birth certificate gender markers

The state health department is requesting the Montana Supreme Court suspend a district court judge’s order that required the department return to allowing Montanans to update gender markers on birth certificates that was issued earlier this month.

The Department of Public Health and Human Services argued in a filing on Friday that the Yellowstone County District Court “lacks authority” to order the department to return to the 2017 rule, which permits Montanans to update the gender marker on their birth certificate using an online form. The department is requesting Montana’s highest court take over the case.

“The district court’s order goes far beyond the scope of the issues and the parties in this case, forces the agency to comply with a nonexistent rule and to violate its own validly promulgated rule, and provides Plaintiffs with substantially all the relief they request at a preliminary stage of the litigation,” the filing read.

DPHHS was sued by the ACLU, among other plaintiffs, on behalf of two transgender Montanans over Senate Bill 280, which said Montanans can only update the gender marker on their birth certificate after a surgical procedure and court order. Gov. Greg Gianforte signed the bill into law in 2021.

In April, District Court Judge Michael Moses temporarily enjoined SB 280, which he clarified both verbally and in writing this month meant the department would be required to return to the 2017 rule and process applications for gender marker changes as litigation continued.

Moses’ clarification came after DPHHS made permanent an emergency rule that barred transgender Montanans from being able to update the gender marker on their birth certificate that was issued in May.

The lawyers for the state said in their petition for writ of supervisory control on Friday that the original injunction did not require DPHHS to reinstate the 2017 rule- contrary to what the judge said- and that reinstating it “grants Plaintiffs’ final relief.”

“Amending one’s birth certificate requires a single transaction between an individual and DPHHS. But if DPHHS prevails on the merits of this lawsuit, then the State has no recourse to correct the birth certificates for any individual who is permitted to change their birth certificate while the preliminary injunction is in place,” the department’s lawyers wrote.

The state argued that under Moses’ latest order, the department has to change any individual’s birth certificate under the procedures set forth in the 2017 rule, which they say is beyond the scope of the litigation.

“At a minimum, this court should clarify that the scope of the district court’s order can only apply to Plaintiffs Marquez and Doe,” lawyers wrote in a footnote, referencing the two transgender Montanans who brought the case against the department.

The department is still accepting applications for changing gender markers on birth certificates, though it may take months to process according to DPHHS.