Calling it unlawful, the Democratic lawmakers on an interim health and human services legislative committee are asking the state health department to rescind an emergency rule it recently issued that stops transgender Montanans from being able to update gender markers on their birth certificates.
The state health department issued the emergency rule earlier this week. It blocks people from changing their birth certificates in all cases except if there was a data entry error. In 2021 state lawmakers passed a law requiring a person to have gender-affirming surgery and petition a court to update their birth certificate, but a Billings judge temporarily blocked that law earlier this year.
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The state health department’s emergency rule, however, does not even allow people who have had surgery to update their birth certificates.
The five Democrats on the evenly-split committee pointed to a law passed last year that requires special notice for emergency rulemaking and said the health department did not follow that law, which requires a state agency to make a “good faith effort” to give notice to committee members before adopting emergency rules.
“The department violated this requirement in its adoption of the so-called emergency rule by failing to make any effort — let alone a ‘good faith effort’ — to notify members of our committee in advance of adoption,” the lawmakers wrote.
The legislators also said the department failed to state in writing the reasons why there is “an existing imminent peril to the public health, safety or welfare” that necessitated the rule, and that rules could only be adopted if that danger could not be addressed otherwise.
“The emergency rule fails to meet this basic requirement, rendering it plainly unlawful,” lawmakers wrote. “ … It is patently obvious that no such imminent peril could exist. Waiting until court action concludes can easily be done and would not result in any imminent danger to public health, safety or welfare.”
In an email Thursday, a spokesperson for the Department of Public Health and Human Services wrote “DPHHS received and is reviewing the letter from Democrats on the Children, Families, Health and Human Services Committee.”
The Democrats include committee Chair Rep. Ed Stafman and Reps. Mary Caferro and Danny Tenenbaum, as well as state Sens. Mary McNally and Jen Gross.
“It is our hope that the agency’s failure to follow Montana law in the adoption of this emergency rule was an oversight and not meant as a direct challenge to the legislative branch’s authority to enact laws which disallow the use of the emergency rule process as a means of circumventing the constitutional rights of Montanans to participate in governmental acts which impact them,” they wrote. “Therefore, it is our hope that this action will be corrected by simply rescinding the rule.”
Republicans passed Senate Bill 280 last year to require surgery and petitioning a court to update a birth certificate, citing frustration with an administrative rule from a previous Democratic administration that allowed people to update their birth certificates using a form through the state health department.
Earlier this month the ACLU of Montana, a plaintiff in the lawsuit against SB 280, said the state was violating the Billings judge’s order blocking the law by not allowing people to make those updates with a similar form process.
Interim committees have some ability to act when they oppose administrative rules issued by agencies under their purview, but the five Republicans on the health and human services committee all voted to support SB 280. The next regularly scheduled committee meeting is in late June.
