Montana Supreme Court seeks response from ACLU in birth certificate litigation

Nicole Girten

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

The court is considering the petition for writ of supervisory control submitted by the state’s health department last week, according to the latest filing on Thursday.

Last Friday, the state health department requested the Montana Supreme Court suspend a Yellowstone County District Court judge’s order that required the Department of Public Health and Human Services return to processing applications for transgender Montanans to change the gender markers on their birth certificate. 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 proceeded.

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.

This development stems from a lawsuit over SB 280, which required transgender Montanans undergo surgery to be able to update their birth certificate. The case was brought by two transgender Montanans represented by the ACLU of Montana.

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.