Montana Supreme Court splits decision over judge's actions in transgender birth certificate case

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State Supreme Court splits decision over judge’s actions in transgender birth certificate case

By MARA SILVERS Montana Free Press | January 11, 2023 8:40 AM

The Montana Supreme Court issued a split decision Tuesday in part of an ongoing case over how transgender people can amend the sex listing on their birth certificates, leaving all parties in another legal standoff over which rules the state health department can apply when evaluating requests.

In a unanimous ruling written by Chief Justice Mike McGrath on behalf of a five-justice panel, the court said Billings District Court Judge Michael Moses was correct last September in requiring the health department revert to a more lenient 2017 rule in order to abide his preliminary injunction in the case over Senate Bill 280. That Republican-backed bill from the last legislative session required proof of surgery and a court order before an individual can change their listed sex between “female” or “male.”

But the court also said that Moses did not have the authority to block a later, more aggressive rule adopted by the health department barring nearly all birth certificate changes to sex. Plaintiff attorneys, which include the ACLU of Montana, had not challenged the department’s most recent 2022 rules in court as part of their ongoing lawsuit, the court wrote.

“The Preliminary Injunction Order requires DPHHS to maintain the status quo, which reinstates the 2017 Rule for as long as the Preliminary Injunction Order — which DPHHS did not appeal — remains in effect,” the Tuesday Supreme Court ruling said. “However, DPHHS is entitled to relief insofar as the [September order] purports to enjoin DPHHS from engaging in rulemaking, as Plaintiffs have not properly challenged the 2022 Rule under MAPA and its implementation therefore has not been brought before the District Court.”

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