Health department. Asks the Supreme Court to invalidate the order to update birth certificates

Although it said Monday it “intends to comply” with an order by a Billings judge to allow transgender Montana to update their birth certificates using a form, attorneys representing the state’s Department of Health late Friday night asked the Montana Supreme Court to overturn that order.

In the file, attorneys from the state Department of Justice representing the Department of Public Health and Human Services wrote that Judge Michael Moses lacked the authority to prevent them from enacting an administrative rule that said birth certificates could only be updated in the event of a clerical error.

That’s because, as attorneys including Attorney General Austin Knudsen wrote, the lawsuit that led Moses to issue a preliminary injunction in April was only about a 2021 law titled Senate Bill 280 that said Montana residents need to have sex-confirmation surgery and petition court to update them. vital records. Lawyers argued that setting state administrative rules was a separate process that did not address that issue.

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“The plaintiffs challenged a law passed by the legislature and signed by the governor. They are now seeking exemption from the rule duly issued by an executive agency,” wrote attorneys including Knudsen, Solicitor General David DeWrist and Assistant Attorney General Kathleen Smithgale, as well as Emily Jones, special counsel Under a state contract.

“The District Court was limited to adjudicating the case or the dispute before it: the constitutional challenge to the legislative law.”

In a court order on September 15 that the Health Ministry initially indicated it would challenge, Musa said it was clear in the spring that the state had been barred from “enforcing any aspect of SB 280” and explicitly told the state to follow the 2017 rule.

The state had previously claimed that Moussa’s initial order was not clear, an order that Moussa reprimanded attorneys from the Justice Department in court earlier this month.

Musa said at the time, “The order was imposed on the department in all aspects of (law enforcement) and they decided to pass the rules anyway, claiming they had the power to do whatever they wanted, no matter what. That’s really unacceptable.” “So my command wasn’t clear. It was clear as a bell. ‘All sides’,” he said.

Transgender people from Montana said having incorrect birth certificates can put them at risk of being exposed undesirably, creating dangerous terminals. Transgender people are at greater risk of experiencing violence. The 2017 law was enacted under a previous Democratic administration.

The Health Department attempted to issue a rule in 2021 to implement Senate Act 280. Then, following Moses’ order in April, the Department held a hearing in June on another emergency rule to block all avenues for making the change unless there was an error in the original document. Although the opposition greatly outweighed the support of al-Qaeda, the ministry made it permanent in early September.

In Friday’s order, Justice Department lawyers responded to Moussa’s criticism of them in court earlier this month.

Throughout the controversy, the District Court (Ministry of Health) has been charged with “fraud,” “fraud,” and “infiltration.”[ing]About the preliminary injunction order issued by the District Court. Naturally, the court had no basis for these accusations other than the fact that the Department of Health and Human Services (DPHHS) issued the 2022 rule,” the lawyers wrote.

In Friday’s filing, the Department of Health and the Department of Justice also argued that by requiring the 2017 rule to exist, Musa was cutting off their ability to enforce SB 280 if the state were to win the blanket case.

The lawyers wrote: “DPHHS will not be able to enforce SB 280 against plaintiffs, or others who have changed their birth certificate, even if DPHHS ultimately succeeds on the merits.” “…a preliminary injunction issued by the court cannot have the effect of freezing the entire government in a particular case.”

Moses’ order from the court is part of a lawsuit filed last year in which the American Civil Liberties Union of Montana sued on behalf of two transgender people from Montana over the 2021 law. The lawsuit is on behalf of Amelia Marques, a Billings resident, and a transgender man identified As John Doe in court proceedings. It’s against Montana. Republican Governor Greg Gianforte; the state Department of Public Health and Human Services, which handles birth certificates; Department Director Adam Mayer. Since then Mayer has left the post and has been replaced by Charlie Brereton.

Friday’s filing said that Marquez and Doe are now free to amend their birth certificates and that “the state has no recourse to correcting the birth certificates of any individual who is permitted to change their birth certificate during the initial injunction.”

The lawyers wrote that they at least want the Supreme Court to clarify the order that applies to Marques and Doe.

Musa’s frustration was evident in the court when he issued his explanatory order last week, saying “If we are to simply circumvent court orders where the court has, in principle, found a violation of the Constitution, that is not all about justice. This is not all our government is about.”

Representatives from the Department of Justice, the Department of Health and the ALCU in Montana were not reached late Friday.

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