Montana Supreme Court seeks response from ACLU in birth certificate litigation

Montana’s Supreme Court is giving the ACLU of Montana 20 days to file a response to the state’s request to strike down a lower court’s order that the health department needed to permit gender marker changes on birth certificates.

In an appeal last week, the state disagreed with Yellowstone County District Judge Michael Moses’ order that the department revert back to the way birth certificates were changed during the Bullock administration. It’s asking the state’s highest court to take over the case, filing what’s called a writ of supervisory control.

However, before that happens, the high court wants to hear from the ACLU, which is representing two transgender individuals seeking to change their Montana birth certificates.

Last week, the court said a 2017 rule allowing applications to be submitted through an online form was the “status quo” prior to litigation and should be followed by DPHHS as the case proceeds toward trial. Moses issued a temporary injunction, blocking a law that the 2021 Legislature passed and Gov. Greg Gianforte signed, which prohibited changing gender markers on birth certificates without a court order and an unspecified surgery.

The state argued in part that the lower court “lacks authority” to order the department to return to the 2017 rule.

“Having reviewed the Petition and the challenged Order, this Court deems it appropriate to obtain a summary response. We will revisit the issue of stay after obtaining responses,” the Thursday filing from the Supreme Court read.

Supreme Court Clerk Bowen Greenwood said the court has multiple options, including granting the state’s request or allowing the case to proceed in the lower court. 

“Supervisory control does mean they could do any number of things, but the most likely two outcomes are they do what the state has asked for or just leave things as they are,” Greenwood said.

For now, Montanans can apply to change the gender marker on their birth certificate through DPHHS, however, the department said it may take months to process.