Judge Holds Health Department in Contempt in Transgender Birth Certificate Case

An ACLU attorney estimates that costs and fees will amount to ‘tens of thousands’ of dollars

By Mara Silvers, Montana Free Press
The Montana State Capitol building in Helena. Beacon file photo

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.” 

Citing provisions in Montana code and legal precedent, Moses also ordered the state to pay reasonable attorneys fees for the entirety of the litigation, which began in 2021, saying state lawyers from the attorney general’s office and the Department of Public Health and Human Services did not act in good faith while defending a law they later agreed was unconstitutional because of vagueness.

Additionally, Moses said the defendants “repeatedly disobeyed” the court’s direction to revert to a prior, more lenient policy for processing birth certificate changes during the course of litigation. Those actions, Moses wrote, showed the state’s “contempt for this judicial body and the judicial system as a whole.” 

“The state here did not act in good faith or in accordance with constitutional and statutory mandates. This Court determined that it was in contempt of court for a significant portion of this litigation. Weighing the equities, this is not a garden variety case,” Moses wrote. “The Defendants spent considerable time and effort defending a statute that they knew was unconstitutional. They ignored orders from this Court and an Order from the Supreme Court. Pursuant to [state law], awarding Plaintiffs with reasonable attorney fees and costs for this litigation is proper.”

Health department Director Charlie Brereton and Gov. Greg Gianforte are also named as defendants in the case brought by the ACLU of Montana and the national American Civil Liberties Union on behalf of two transgender plaintiffs, Amelia Marquez and John Doe.  

In a statement on behalf of Brereton and the health department, DPHHS spokesperson Jon Ebelt said the agency is “reviewing the order and determining our next steps.” Emilee Cantrell, a spokesperson for Attorney General Austin Knudsen, echoed that sentiment in a separate Tuesday email.

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.

Instead of restoring that process, the state health department responded to Moses’ order by drafting an entirely new, more restrictive administrative rule that “removed the procedure for changing the sex designation of birth certificates altogether,” the judge wrote in his Monday order. 

At a court hearing later that year, the state claimed confusion over the April injunction and said that, by drafting a new rule in 2022, it was acting in good faith to fill a regulatory void. Moses clarified his direction to revert to the 2017 policy, which the health department did for roughly four months.

But in January, the state again stopped processing changes to sex on birth certificates, citing conflicting interpretations between defendants and plaintiffs about a Montana Supreme Court ruling in the matter. That decision said that Moses could not consider the legality of the 2022 rule, which the plaintiffs had not directly challenged, but affirmed that his earlier injunction had directed the state to revert to the 2017 birth certificate policy. 

At a June hearing, attorneys for the state again appeared before Moses to answer for why the health department had again stopped using the 2017 rule. 

“New defense counsel came before the Court with ‘hat in hand’ to explain his clients’ actions. Defendants reiterated that they believed this Court’s Order that granted the preliminary injunction of [the 2021 law] and ordered Defendants to revert to the status quo was confusing. After this Court clarified the intentions behind that Order yet again, defense counsel apologized and indicated that such contempt ‘is not going to happen again,’” Moses wrote.

While Moses said he had decided not to hold the department in contempt earlier in litigation, the judge, who announced his impending retirement earlier this month, said Monday that “such restraint is no longer warranted” given the department’s January decision to stop following the 2017 rule. Moses also sided with the assertion by the plaintiffs that the state’s actions had unnecessarily complicated court proceedings. 

“Defendants were made aware numerous times that their conduct was in violation of this Court’s valid Order, yet they willfully and continuously thumbed their nose at this Court, wasting Plaintiffs’ time, energy, and money to enforce that Order and violating the constitutional rights of Montanans. Plaintiffs should be reimbursed for the time expended,” Moses wrote.

While the judge’s order sidelined the 2021 birth certificate policy for vagueness, the final ruling did not directly consider whether the law unconstitutionally discriminated against transgender people and violated their right to privacy. The plaintiffs had narrowed the scope of their original arguments to focus on vagueness, a stance that attorneys for the state appeared to agree with during later phases of litigation. 

Moses indicated that that admission was part of the reason he determined that awarding attorneys fees for the entirety of the litigation is warranted.

“In this case, the government fought to enforce a law that they later conceded was unconstitutional. It was necessary for plaintiffs, as a private party, to bring this case in order to vindicate a critical constitutional right,” Moses wrote.  

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. 

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.

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