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Plaintiffs say state isn't following preliminary injunction on birth certificate laws

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The plaintiffs who won a preliminary injunction blocking a new law governing how birth certificates are updated say the state is not complying with the judge's order.

Following a preliminary injunction nearly a month ago stopping the state from enforcing a new law that required Montanans who are transgender and want to update their birth certificates to undergo surgery and petition a court, the state health department is not allowing people to make those changes, the ACLU of Montana and other plaintiffs said Tuesday. 

Asked in an early May email what kind of actions it would take during the preliminary injunction, a spokesperson for the state Department of Public Health and Human Service wrote in an email that "potentially affected requests are temporarily on hold as DPHHS works with (the state Department of Justice) to review the recent preliminary injunction ruling and its implications."

Akilah Lane, a staff attorney at ACLU of Montana, said Tuesday there are a variety of paths the plaintiffs can take going forward.

"At this point, we're still considering our options," Lane said. "We want to keep all options open at this point."

The April order from Billings Judge Michael Moses said the state is "enjoined from enforcing any aspect of (Senate Bill) 280 during the pendency of this action."

The order also said the "the purpose of a preliminary injunction is to prevent ‘further injury or irreparable harm by preserving the status quo of the subject in controversy pending an adjudication on the merits."

That language is common in preliminary injunctions, Lane said, and means that the state should go back to the process in place before the law was passed in early 2021 by a GOP-majority Legislature and signed by a Republican governor.

That process, adopted as an administrative rule by a previous Democratic governor's administration, allowed people to update a birth certificate by submitting a form to the state health department.

That previous rule was amended in July 2021 to remove the form process following the passage of the new law earlier that year.

"Preserving the status quo means reverting to whatever process or law was in place prior to the current controversy," Lane said.

Lane said ACLU of Montana has received several complaints from people unable to update their birth certificates, but it's unclear how many may have been affected.

"The state hasn't provided us with any justification for why it is not complying with the district court's order," Lane said. " ... It appears to be part of a larger, really problematic issue of seeing an attitude of disrespect toward the judiciary."

A scheduling conference is set for later this month in the case, which is in Yellowstone County District Court.


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