The 2021 Legislature passed SB280, which states in part: “The sex of a person designated on a birth certificate may be amended only if … the sex of the person born in Montana has been changed by surgical procedure.” Naturally, because “surgical procedure” is not defined, the Legislature was sued over the law because it is “void for vagueness.” No one knows whether a breast augmentation without a revision of other parts of a born male qualifies. What about double mastectomy in a woman transitioning to a male without modification of other parts to reflect that of a male? It’s a conundrum that the Legislature is charged with addressing when it chooses to craft legislation. And when the Legislature doesn’t consider the vagueness of broad sweeping laws it passes, courts are forced to step in, stop the law from implementation, and send it back to the Legislature to amend and fix in the next session. In the case of SB280, the District Court recognized the law’s vagueness and suspended implementation pending a trial on the merits.
In response, Gov. Greg Gianforte’s administration amended the same rule in its own way, never bothering to adhere to the District Court order suspending any changes to the rule until trial on the merits. This Gianforte end-around violates the separation of powers and undermines the Republican principle that only the Legislative Branch makes laws, not the Executive Branch. And here, when the Legislature has decided it controls rulemaking authority on this issue, the Executive Branch is supposed to defer to the Legislature. When the District Court found out about the Gianforte administration’s antics, the Court reaffirmed its ruling suspending the implementation of any new laws or rules on the subject until a trial on the merits of SB280 could be held. And in response, the Gianforte administration proclaimed it would not be following the Court’s order. Rather than exercise the Constitutional guarantees of due process and appeals, the Gianforte administration chooses to shun the rule of law and defy the court order.
Sadly, no one is surprised that this administration willfully and openly defies the judiciary. What is surprising is this administration claims to be Republican. The National Republican Platform expresses open disdain for those in the Executive Branch that overstep their authority and fail to follow the rule of law:
“The President … defies the laws of the United States by refusing to enforce those with which he does not agree… The current Administration has exceeded its constitutional authority, brazenly and flagrantly violated the separation of powers, sought to divide America into groups and turn citizen against citizen. The President has refused to defend or enforce laws he does not like… [and] directed regulatory agencies to overstep their statutory authority. He has changed what John Adams called “a government of laws and not of men” into just the opposite.”
That passage applies lock step to Gianforte’s administration. Guess who the Republican Platform is referring to? Barack Obama.
Tammi Fisher is an attorney, former mayor of Kalispell and host of Montana Values Podcast.