Courts

Montana Judge Benchslaps State Attorneys Over Anti-Trans Rule, State Decides To Continue Doing What They're Doing Anyway

Montana officials seem to think they're -- quite literally -- above the law.

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Transgender flag waving in blue cloudy sky, 3D renderingMontana is really doing its level best to make life difficult for trans people. Specifically, the Montana Department of Health and Human Services recently enacted a rule that prevents transgender people from changing their gender on their birth certificate. Besides the obvious moral issue with such a rule, there’s pending litigation over a Montana law that increased the barriers to changing the gender on a birth certificate and, more to the point, the judge in that case issued a temporary injunction in April preventing the enforcement of that law. So it sure looks like the state tried to circumvent the injunction.

And that’s exactly how District Court Judge Michael Moses saw it. He blocked the new state rule, and he was pretty salty about the effort to get around his April order. As reported by Huffington Post:

Moses said his April ruling had been “clear as a bell” and compared the state’s subsequent actions to a person twice convicted of assault who tries to change their name following a third offense to avoid prosecution.

“Isn’t that exactly what happened here?” Moses asked. “I’m a bit offended the department thinks they can do anything they want.”

The state defended the adoption of the new rule, despite the injunction:

State officials denied that the new rule preventing changes to birth certificates was adopted in bad faith. Montana Assistant Solicitor Kathleen Smithgall said the state came up with the new rule to fill a gap in regulations after the 2021 law was blocked.

But Moses was having none of that. He made it clear the injunction returned the birth certificate amending process to the 2017 rules until the litigation is decided.

But it looks like Montana is ignoring the judge.

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Law professor Carl Tobias noted this could open the state up for contempt charges:

“Appeal is what you contemplate — not that you can nullify a judge’s orders. Otherwise, people just wouldn’t obey the law,” Tobias said. “The system can’t work that way.”′

The move could leave state officials open to contempt of court charges, which in some cases can lead to jail time for offenders, Tobias said. He added that the attorneys representing the state were likely aware of the potential consequences but were “caught in the middle” between a recalcitrant agency and the judge.

Not that actual consequences are likely to change the calculated political move by the state. And if weakening the judiciary is the impact of that political victory, well, that isn’t even part of the calculus.

Just file this away with [gestures wildly around at everything] the eroding respect for the rule of law in this country.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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