Judge holds health department in contempt in transgender birth certificate case
The state of Montana may owe civil rights attorneys upwards of tens of thousands of dollars after a Billings judge on Monday held the state health department in contempt for what he called “flagrant disregard” of court orders in a yearslong case about how transgender people can update the sex on their birth certificates.
In an order signed just after 5 p.m. on Monday, 13th Judicial District Court Judge Michael Moses struck down the 2021 Republican-backed law at issue, which required surgery and a court order before a person can change their listed sex. The legislation and the health department’s corresponding administrative rule to enact the law, Moses found, are “unconstitutionally vague.”
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Moses directed that specific sanctions for the contempt charge cover the costs and fees for all plaintiff attorneys accrued since January. Akilah Deernose, staff attorney for the ACLU of Montana, estimated the total alone will amount to “tens of thousands of dollars” for the work of six attorneys, but did not specify the expected amount. The court’s order said the plaintiffs will be required to “provide Defendants with a careful accounting to ensure that no fee or cost is duplicated” with other attorneys fees. If negotiations should break down, Moses said, the court will schedule another hearing.
“Today’s order reaffirms that the state’s meritless defense of an unconstitutional law has consequences,” Deernose said.
The case over the 2021 law became at times a procedural rat’s nest when actions by the Gianforte administration did not align with instructions from Moses and the state Supreme Court. Moses temporarily blocked enforcement of the law in April 2022 and ordered the state to revert to the status quo, a 2017 departmental policy implemented under Democratic Gov. Steve Bullock that allowed people to update their designated sex by filling out a short form.
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Deernose said it remains to be seen what birth certificate amendment policy the state decides to implement going forward. If the 2022 rule is readopted, she said, the ACLU may take new legal action.
“We intend to sue over whatever unconstitutional law the state enacts to bar transgender individuals from accessing basic identity documents,” Deernose said.