The announcement represents a shift from the department’s response to an oral ruling by Judge Michael Moses last Thursday. Last week, Department of Health and Human Services Director Charlie Brereton said the department is awaiting a written copy of the ruling and that the agency will continue to enforce a different rule approved in September that prohibits gender changes on birth certificates based on the person’s gender identity. The controversy stems from ongoing litigation over Senate Bill 280, signed into law by Gov. Greg Gianforte, which would make it harder for transgender people to update their gender on their birth certificates. That bill sought to replace a more lenient 2017 administrative rule passed under former Gov. Steve Bullock. During last week’s hearing, Moses told attorneys representing the health department and the ACLU of Montana that he was “clear as a bell” in an April order that halted the law while the case continued and restored the “status quo » since 2017. Instead of reverting to the 2017 standard after that April order, the health department enacted an emergency rule that allows a person’s gender determination to be changed only to correct a data entry error or after submitting DNA evidence or genetic testing for to indicate that the gender is incorrect. The department later adopted a formal version of that rule in September, despite substantial opposition expressed in public testimony. The agency’s leadership said it sees sex as a “biological concept” that cannot be changed and that its rules help keep vital records and statistics accurate. Moses said at last week’s hearing that the department’s decision to introduce new rules rather than revert to the 2017 status quo violated his mandate and that by doing so, health officials were “defying the orders of the courts.” The judge reiterated his displeasure with the department’s actions Monday in his written order, writing that if state officials “require further clarification, they are welcome to seek it from the Court rather than engage in activities that constitute illegal violations of the Ordinance.” Moses also said any motions by the ACLU of Montana to hold the department in contempt of court “based on continued violations” of its orders “will be immediately addressed.” The health department said it never considered it to be in violation of the April ban, arguing that the subsequent, more restrictive rules it created were an attempt to fill a regulatory gap created by the judge’s “vague” order. On Monday, the ministry said it still disagreed with the decision. “The Department has received the court’s order clarifying the preliminary injunction and despite disagreeing with it, intends to comply with its terms,” the statement said. “The Department stands by its actions and analysis regarding the April 2022 preliminary ruling as set forth in its rulemaking that addressed critical regulatory gaps left by the court.” The department also said it is “carefully considering next steps in the litigation.” Health Department spokesman Jon Ebelt did not immediately respond to an additional question asking what day the department intended to reimplement the 2017 standards. Alex Raitt, a lawyer for the ACLU, said the department should have no problem re-implementing the old standard while the lawsuit plays out, but added he’s skeptical the agency will act on the intent of the judge’s order . “I’m in ‘proof’ mode,” Raitt said in a phone call Thursday. “We need to start processing these applications before I accept them.” Forward Montana, an advocacy group that represents youth and advocates for transgender rights, also expressed continued frustration with the department’s recent actions. “Throughout this process, including DPHHS’s most recent response, the Department has shown clear contempt for the courts, the will of the people, and especially transgender Montanans who are just trying to live safe, happy lives in our state,” Izzy said. Milch, senior director of advocacy with Forward Montana. “Complying with this court order is a step in the right direction, and we hope that transgender Montanans will now have access to accurate identification as this litigation continues to unfold.”
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