Tom Daley
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ACLU Blasts Montana's Delay on Trans Birth Certificate Order

Birth certificate

The state of Montana is failing to comply with a court order that blocked a law that would have made it more difficult for transgender residents to change the gender on their birth certificates, the American Civil Liberties Union of Montana says.

The state passed last year passed Senate Bill 280, requiring proof of surgery and the approval of a court in order to change the gender marker, whereas for the previous four years trans Montanans had been able to obtain a new birth certificate through a simple online form. The form was taken down after SB 280 became law.

The ACLU sued on behalf of two trans residents, and in April a judge issued an injunction temporarily blocking enforcement of the law and ordering the state to go back to the online form. Yellowstone County District Court Judge Michael G. Moses found that the law is likely unconstitutional because it targets only trans people. However, a month after his ruling, the form is still not available, according to the ACLU, which raised the possibility of more legal action.

“We have continued to be patient in allowing the State time to comply with the court ordered preliminary injunction,” said a statement issued by the ACLU of Montana, the ACLU Foundation LGBTQ & HIV Project, and the law firm of Nixon Peabody, all of which were involved in the case. “However, close to one month has passed and the State’s willful indifference to the court order is inexcusable. The procedure in place prior to the passage of SB 280 was simple and efficient and administered without incident for years. 

“The fact that the State refuses to revert to the previous processes 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. If the State continues to violate the preliminary injunction, we will have no choice but to seek relief from the Court.”

Officials with the state’s Department of Public Health and Human Services told the Daily Montanan they are reviewing the injunction with the Montana Department of Justice.

“Potentially affected requests are temporarily on hold as DPHHS works with DOJ to review the recent preliminary injunction ruling and its implications,” DPHHS spokesperson Jon Ebelt told the paper via email. “Staff are advised to relay to applicants that, as a result of ongoing litigation and DPHHS and DOJ’s review of the preliminary injunction, the Office of Vital Records cannot respond further to inquiries at this point in time.”

An attorney who is not involved in the case saw no justification for the state’s lack of compliance. “If a court issues a preliminary injunction, from the time that it is entered the party that is enjoined is required by law to obey the injunction, and violating the injunction could result in a contempt of court,” Devlan Geddes of Bozeman, Mont., law firm Goetz, Geddes & Gardner told the Daily Montanan.

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