Yellowstone County Circuit Court Judge Michael Moses issued a written order Monday, calling the state’s reasoning for its earlier noncompliance “demonstrably ridiculous.” He said there would be consequences if the health ministry did not comply. Moses criticized the department from the bench last week for enacting a new rule that effectively barred transgender residents from altering their gender markers despite Moses’ order last spring blocking a related law. The state health department said Moses’ original order was vague and left a “regulatory loophole.” In his order Monday, Moses wrote that the department clearly needed to return to the status quo, which was a rule enacted in 2017 that allows birth certificate amendments. Moses said as much during a hearing last week and issued an oral order. The state health department responded that its rule governing birth certificate amendments would remain in effect and awaited a written order. The state changed its position Monday after that order was released. Agency spokesman Jon Ebelt said the health department intends to comply with the order, “despite our disagreement with it.” University of Montana law professor Craig Cowie says the judge has options to carry out his order. “He said, I believe, that we are approaching the point where if the agency continues to ignore his order, they will be willfully disobeying him.” The court could require the state health department to pay a fine, pay the plaintiffs court costs or even require jail time for anyone found responsible for the disobedience if the state is found in contempt of court. Cowie says compliance should not be up for debate, and this situation is further evidence of growing tension between the three independent branches of Montana government. “It’s kind of a fundamental principle of our democracy that we follow due process.” Cowie said the state has legal avenues to appeal the blocking of the rule. A final decision on state regulation of birth certificate amendments is still pending.
