Montana not following transgender birth certificate ruling

May 20, 2022, 2:35 PM | Updated: 2:56 pm
FILE - In this March 15, 2021, file photo, demonstrators gather on the steps of the Montana State C...

FILE - In this March 15, 2021, file photo, demonstrators gather on the steps of the Montana State Capitol protesting anti-LGBTQ+ legislation in Helena, Mont. It's been a month since a Montana judge temporarily blocked enforcement of a state law that required transgender people to undergo surgery before they could change their gender on their birth certificate, and the state still isn't in compliance with the court order, the ACLU of Montana said. (Thom Bridge/Independent Record via AP, File)

(Thom Bridge/Independent Record via AP, File)

HELENA, Mont. (AP) — It’s been a month since a Montana judge temporarily blocked enforcement of a state law that required transgender people to undergo surgery before they could change their gender on their birth certificate, and the state still isn’t in compliance with the court order, the ACLU of Montana said.

Jon Ebelt, spokesperson for the state health department, said the agency is still working with the Department of Justice to review the April 21 ruling and its implications. He did not respond to an email asking if that meant the state was evaluating whether to appeal the order.

“We have continued to be patient in allowing the state time to comply with the court ordered preliminary injunction,” the ACLU of Montana said in a recent statement. “However, close to one month has passed and the State’s willful indifference to the court order is inexcusable.”

Montana is among a growing list of Republican-controlled states that have moved to restrict transgender rights, including requiring student-athletes to participate in sports based on their gender assigned at birth or making it illegal for transgender minors to be treated with hormones or puberty blockers.

Beginning in late 2017, transgender residents could apply to change the gender on their Montana birth certificate by filing a sworn affidavit with the health department. District Court Judge Michael Moses’ order requires the state to revert back to that process while the challenge to the new law is pending.

“The fact that the state refuses … evidences its lack of respect for the judiciary and utter disregard for the transgender Montanans who seek to have a birth certificate that accurately indicates what they know their sex to be,” the ACLU said.

If the state continues to violate the preliminary injunction, ACLU of Montana staff attorney Akila Lane said the organization would ask the court to step in.

“We’re only looking for the state to comply” with the preliminary injunction, Lane said Friday.

A week after the ruling was issued, Billings attorney Colin Gersten inquired about an updated gender designation application form on behalf of a friend. The Office of Vital Records responded saying: “We will contact you once we are able to discuss your options.”

Gersten made another inquiry about the proper form on May 11 and did not receive a reply, according to emails shared with The Associated Press.

Many transgender people choose not to undergo gender-confirmation surgeries. Such procedures are sometimes deemed unnecessary or too expensive, two transgender Montanans argued in their July 2021 lawsuit.

Republican state Sen. Carl Glimm, who sponsored the legislation, has argued that the Department of Public Health and Human Services overstepped its authority in 2017 by changing the designation on a birth certificate from “sex” to “gender” and then setting rules by which the designation could be changed.

Half the states, plus the District of Columbia, allow transgender residents to change the gender designation on their birth certificates without surgical requirements or court orders, according to the policy organization Movement Advancement Project. Just over a dozen states require surgical intervention, and such barriers are being challenged in several states, including Montana.

Over the past few years, other legislation has been aimed at transgender people, and the new laws are being challenged in court.

Alabama passed a law making it a felony to prescribe gender-confirming puberty blockers and hormones to transgender minors, but a judge has blocked the law. In Texas, Gov. Greg Abbott ordered child welfare officials to investigate parents of children receiving puberty blockers and other gender-confirming care as potential abuse. That, too, was blocked by a judge.

At least a dozen states have recently passed laws to ban transgender girls and women from participating in female sports, most recently Utah.

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Montana not following transgender birth certificate ruling