Furious judge slams Montana for defying court orders in trans rights case & orders state to pay

A district court judge in Montana struck down a 2021 law requiring a “surgical procedure” in order for transgender residents to change the gender marker on their birth certificates. He also held the state in contempt for repeatedly defying a temporary injunction he’d issued against the law in 2022.

“There is no legal justification for defendants’ continued refusal to follow court orders after numerous clarifications by this court and the Supreme Court of Montana,” Yellowstone County District Court Judge Michael G. Moses wrote in his Monday decision striking down Senate Bill 280. Moses ruled that the law was in violation of both the state and federal constitutions, according to the Daily Montanan.

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Devastated plaintiffs argued that the policy forces trans people “to out themselves.”

The law, passed by Montana’s Republican-led legislature in April 2021 and signed by Gov. Greg Gianforte (R) the following month, required transgender people to have undergone an unspecified “surgical procedure” in order to change the gender marker on a birth certificate. Prior to the law’s passage, Montana’s Department of Health and Human Services said in 2017 that residents could change the gender marker on their birth certificates if they were intersex, had undergone “a gender transition,” or had a certified court order indicating that their gender had been changed. S.B. 280 effectively repealed that rule.

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Critics argued that S.B. 280’s requirement made it difficult – if not impossible – for many trans people to get a corrected birth certificate because surgery is too expensive for many people, not all trans people want or need gender-affirming surgery, and many are not good candidates for it for medical reasons.

In July 2021, two transgender state residents sued Gianforte, DPHHS, and its director, claiming that S.B. 280 had made it virtually impossible for them to change their birth certificates, thus violating their constitutional right to privacy and due process.

In April 2022, Moses ruled that the law’s requirement of an unspecified surgical procedure made it impossible for anyone to follow. The judge issued a temporary injunction against S.B. 280, essentially blocking it from going into effect and reinstating the 2017 rule.

But rather than complying with Moses’s ruling or appealing the preliminary injunction, last September Montana’s DPHHS instituted a new rule that a person’s sex listed on a birth certificate could only be changed if it was incorrectly entered by a “data entry error” or if “the sex of the individual was misidentified on the original certificate and the department receives a correction affidavit and supporting documents… including a copy of the results of chromosomal, molecular, karyotypic, DNA, or genetic testing that identify the sex of the individual.”

Moses struck down the DPHHS rule the same month, calling it a direct violation of his April order that block S.B. 280. “I’m a bit offended the department thinks they can do anything they want,” Moses said at the time.

In January, the state’s Supreme Court upheld Moses’s preliminary injunction blocking S.B. 280.

The Daily Montanan reports that on June 1, attorneys for the American Civil Liberties Union argued for a second time that contempt charges should be brought against the state.

“Plaintiffs requested that defendants be held in contempt of court. While this court refrained from such a decision in September 2022 after defendants’ initial refusal to follow the temporary injunction, such restraint is no longer valid,” Moses wrote. “[The State] repeatedly disobeyed a lawful order from this court, showing their contempt for this judicial body and the judicial system as a whole.”

Moses ordered the state to pay for all legal costs associated with the case.

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