Lawmakers to DPHHS: birth certificate emergency rule is ‘anti-democratic and insulting to Montanans’

Democrats on a state Legislature interim committee sent a letter Thursday urging the Department of Public Health and Human Services to rescind an emergency rule it enacted this week that closed the door for transgender Montanans to update the sex on their birth certificates, arguing that the process of creating the rule was “anti-democratic and insulting to Montanans.”

The Children, Families, Health, and Human Services Committee, made up of five Republicans and five Democrats, has oversight of DPHHS and emergency and temporary rules created by the agency. In the letter addressed to DPHHS Director Adam Meier, Democrats said the department violated “several sections” of state law when it implemented the emergency rule on Monday.

According to a Republican-sponsored law passed during the last legislative session, departments are required to “make a good faith effort to provide special notice” to committee members and staff before adopting an emergency rule. In this instance, the letter said, DPHHS failed to do so.

Democrats on the interim committee also said the agency misused its emergency rulemaking authority when it eliminated avenues for transgender Montanans seeking a birth certificate change. The same state law directs agencies to create emergency rules only “in circumstances that truly and clearly constitute an existing imminent peril to the public health, safety, or welfare that cannot be averted or remedied by any other administrative act,” and to provide substantiation of such emergencies in writing.

The laws governing emergency rules “are not merely hoops to be jumped through,” the letter continues, “but are meant to prohibit exactly what is happening here: the unlawful misuse of emergency rulemaking to circumvent the democratic means of adopting rules that require citizen input, the consideration of expert evidence, and a deliberative process within the agency.”

None of the five Republicans on the committee signed the Democrats’ letter. DPHHS has not yet publicly replied to the message.

The department’s decision came weeks after being ordered by a district court judge to cease enforcement of Senate Bill 280, which required surgery and a court order to change the sex on a person’s birth certificate. The order instead required the department to return to the status quo that was in place before that law was passed. Plaintiffs in the case challenging SB 280 argue that the judge’s order directed DPHHS to reimplement a 2017 rule allowing Montanans to fill out a form attesting that the sex on their birth certificate needed to be changed.

“The Court ordered the State to preserve the status quo by providing our clients and all transgender Montanans the ability to amend the gender marker on their birth certificates — as was the law prior to the passage of SB 280,” said the ACLU of Montana, which is representing the plaintiffs, in a statement after the emergency rule was published. “The State is willfully refusing to comply, and in doing so is showing their true colors — these laws and regulations are about harming transgender Montanans. We intend to take this up in Court.”

Explaining its reasoning for the emergency rule, the department contradicted the premise of SB 280 by saying a person’s sex as assigned at birth is “immutable” and cannot be changed by surgery. Under the emergency rule, the only ways in which a person can update the sex designation on their birth certificate are by providing evidence of a data entry error at the time the form was created or documentation through DNA or genetic testing that the originally listed sex is inaccurate.

The department said it was compelled to create a new standard for processing birth certificate change requests because the judge’s order nullified the rules by which the Office of Vital Records (OVR) was doing so in accordance with SB 280.

“While the court’s preliminary injunction currently precludes OVR from accepting and processing birth certificate sex designation amendment applications pursuant to the procedures set forth in S.B. 280, there is a perception that OVR should be accepting birth certificate sex designation amendment applications [and] immediately process such applications pursuant to the non-existent 2017 rule,” the department said in its announcement of the emergency rule on Monday. “The department needs, immediately, to correct this confusion and clearly set forth the standards under which such applications will be processed. Montanans deserve to know how such applications will be handled in this period.”

If supported by a majority of its members, the Children, Families, Health, and Human Services Interim Committee could convene a meeting to deliberate on the emergency rule and ask questions of the department. If such a meeting is not scheduled, the committee is next slated to convene on June 27.

The Montana Free Press is a nonprofit newsroom based in Helena. To see the article as originally published, click here.