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Montana Dept. of Health & Human Services defies court on Trans order

The State is willfully refusing to comply & in doing so is showing their true colors- these regulations are about harming trans Montanans

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Montana Department of Public Health and Human Services building (Screenshot/Montana Public Radio)

BILLINGS, Mt. – The state of Montana Department of Public Health and Human Services (DPHHS) is openly defying an order by a state district court which had granted a preliminary injunction requiring the agency to comply with the Court’s order to return to the 2017 standard for changing the gender marker on birth certificates.

Nearly one month after a state district court granted a preliminary injunction in Marquez v. State of Montana, the State is still refusing to comply.  

On April 21, 2022, a Yellowstone County District Court ordered the state to stop enforcing SB 280, a law passed last year that restricts how and when the gender marker on a Montana birth certificate can be changed, and to revert to the previous procedure in place for updating the gender marker on a birth certificate. That procedure allowed for transgender Montanans to update the gender marker on their birth certificate through various means, including completion of a simple attestation form.  

The department issued an emergency order Monday claiming that the agency is unable to comply saying said the court’s decision leaves them in “an ambiguous and uncertain situation,” which officials are blaming saying they cannot return to the “status quo” as requested by the court order, because that system no longer exists, since SB 280 required the department eliminate the 2017 rule.

“The court did not issue a mandatory injunction directing the department to re-implement the 2017 rule,” the emergency rule read. “Accordingly, there is currently no non-enjoined regulatory mechanism by which the department can accept and process birth certificate sex identification amendment applications.”

“Sex is different from gender and is an immutable genetic fact, which is not changeable, even by surgery,” the DPHHS emergency rule continued.

The ACLU of Montana, the ACLU Foundation LGBTQ & HIV Project, and Nixon Peabody LLP who represented the two transgender plaintiffs who sought to change the gender marker on their birth certificates, and challenged Senate bill SB 280 passed by the 2021 Montana Legislature that changed the gender marker rule on birth certificates, issued a statement:

“The Court order could not be more clear. 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. 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.” 

In an email, DPHHS spokesman Jon Ebelt wrote, “The Department of Public Health and Human Services believes that all individuals should be treated with dignity and respect, and that they should be provided all of the rights and protections to which they are entitled under the Constitutions and laws of the State of Montana and of the United States. As noted in the emergency rule, the Department has an obligation to ensure the accuracy of vital records. The rule obeys the court’s order, addresses a critical regulatory gap, and remains consistent with current law, as well as the science.”

“In the state’s non-compliance with the order, they showed their true colors,” said Akilah Lane, staff attorney for the Montana ACLU. “These laws and this emergency rule are intended to harm transgender Montanans, and that’s what it has done.”

Lane said the ACLU intends to take up this matter in court and they’ve been in communication with opposing counsel on the case.

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Montana

Montana state court blocks anti-Trans birth certificate law

“The needless barrier to accurate documentation for transgender people enacted by the Montana legislature is unconstitutional”

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ACLU of Montana

BILLINGS – A state district court granted a preliminary injunction in Marquez v. State of Montana Thursday, holding that a law passed by the 2021 Montana Legislature likely violates the constitutional rights of transgender Montanans.

The ACLU of Montana, the ACLU’s national office, and Nixon Peabody, LLP challenged Senate bill SB 280 on behalf of two transgender plaintiffs who seek to change the gender marker on their birth certificates.

“Today is a huge win for all Montanans as we strive towards a more equal community,” said Amelia Marquez. “Our constitution provides the means to protect the most vulnerable Montanans, and I am thankful for those who continue to advocate for gender diverse Montanans and our rights.”  

“We are thrilled that the Court recognized the substantial and unnecessary burdens this law places upon transgender individuals in violation of their constitutional rights,” said Akilah Lane, staff attorney at the ACLU of Montana. “The Court’s injunction affirms the basis of our case: that SB 280 intentionally targets transgender people for unequal treatment because, as Judge Moses wrote, ‘only transgender individuals are subjected to these procedures and burdens in order to have a birth certificate that accurately reflects their gender.’” 

“This ruling is an important step forward for our clients and for others affected by the unconstitutional law,” said Seth A. Horvath, a partner with Nixon Peabody’s Complex Disputes practice. “There are limits on legislative authority, and today the court prudently enforced those limits.” 

“The needless barrier to accurate documentation for transgender people enacted by the Montana legislature is unconstitutional,” said Jon Davidson, senior staff attorney at the ACLU LGBTQ & HIV Rights Project. “It was rightfully enjoined today.  This law serves no valid purpose other than to hurt transgender people like our clients Amelia Marquez and John Doe.  We’ll continue to fight this unconstitutional effort to harm transgender Montanans.” 

In this case, the ACLU of Montana, the ACLU, and Nixon Peabody are representing Amelia Marquez, a transgender woman, and John Doe, a transgender man, in their lawsuit challenging a law that makes it virtually impossible to correct the sex designation on their birth certificates. Marquez and Doe’s case asserts that Senate Bill 280 (passed by the 2021 Montana Legislature) violates their constitutional rights to privacy, equal protection of the law, and due process. 

SB 280 requires a transgender person to obtain a certified copy of an order from a court indicating that the sex of the person has been changed by “surgical procedure.” The court order must then be provided to the Department of Public Health and Human Services (DPHHS). For many transgender Montanans, surgical procedures are either unwanted, medically contra-indicated, or cost-prohibitive.  

In granting a preliminary injunction, the court found that, “Plaintiffs provided unrebutted evidence describing that neither gender-affirming surgery nor any other medical treatment that a transgender person undergoes changes that person’s sex. Instead, gender-affirming surgery aligns a person’s body and lived in experience with the person’s gender identity, which already exists.” 

Before the passage of SB 280, transgender Montanans needed only to provide an affidavit to DPHHS to change the gender marker on a birth certificate. This process was efficient and easy and was administered without problem for years until the legislature decided to act.    

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Montana

Trans women awarded $66k after being denied gender-affirming care

“No employee should have to tolerate being denied insurance coverage for their medically necessary health care solely because they are Trans”

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Eleanor Andersen Maloney (Photo courtesy of American Civil Liberties Union of Montana)

BILLINGS, Mt. – A Trans woman in Montana was awarded compensation last week after she was denied gender-affirming healthcare under a county health benefits plan in what LGBTQ+ advocates are hailing as a “win for transgender rights” in the state. 

The Montana Department of Labor and Industry Office of Administrative Hearings awarded Eleanor Andersen Maloney, a former prosecutor in the Yellowstone County attorney’s office, over $66,000 in damages for the discrimination she endured while working for the county – which includes Billings, Montana’s largest city.

The decision comes after a 2020 ruling from an administrative law judge at the Montana Human Rights Bureau that found Yellowstone County’s ban on gender-affirming care constitutes unlawful sex discrimination, violating the Montana Human Rights Act.

That ruling came after the U.S. Supreme Court ruled in the landmark Bostock v. Clayton County, extending Civil Rights Act protections to LGBTQ+ people in employment. Since, President Joe Biden has expanded the ruling to include other areas, like housing, education and health care. 

The compensation also comes at a time when states across the country are issuing guidance confirming that excluding gender-affirming care from health benefits plans is discriminatory. According to the American Civil Liberties Union (ACLU) of Montana, 21 states, including Montana, and the District of Columbia have established that such exclusions are unlawful. 

“I’m grateful that the rights of LGBTQIA+ Montanans are vindicated today,” said Eleanor Andersen Maloney in a press release. 

The damages cover lost compensation and earnings because of Maloney’s “constructive discharge” – when a person resigns due to a hostile or intolerable work environment.

“Eleanor’s victory should send a message to policymakers and employers around the country that denying health care to transgender people is costly,” said Malita Picasso, staff attorney with the ACLU LGBTQ & HIV Project, in the release. 

According to Picasso, multiple ACLU clients have sued over the denial of gender-affirming care and have received compensation. 

“No employee should have to tolerate being denied insurance coverage for their medically necessary health care solely because they are transgender,” she said. “A person shouldn’t be forced to ask a court just to receive medically necessary health care, but this victory reaffirms that when trans people fight back, we win.”

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Montana

Montana Democrats want sanctions against homophobic GOP Senator

“Sen. Manzella’s remarks are nothing short of offensive, dangerous & unacceptable,” the House Minority Leader & Senate Minority Leader wrote

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State Sen. Theresa Manzella, R-Hamilton (Screenshot via Helena NBC News affiliate KTVH)

HELENA – The Montana Legislature’s minority Democratic Party leaders called on State Senate President Mark Blasdel, R-Kalispell to sanction State Senator Theresa Manzella, R-Hamilton, for homophobic remarks she made during a rally supporting an anti-LGBTQ+ pastor in Clinton this past week.

Manzella told the crowd gathered in Clinton that members of the LGBTQ community like to “play the protected class card,” because queer couples in general have expressed that they’re scared to walk down the street holding hands in fear of possible violence against them for their sexuality, the Missoulian newspaper’s education reporter Skylar Rispens reported.

“I’ve got to tell you, I think those are normal consequences associated with the choices they made,” Manzella added.

The Montana Legislature’s Democratic Party leaders called for Manzella to be removed from her interim committee assignment. 

“Sen. Manzella’s remarks are nothing short of offensive, dangerous and unacceptable,” House Minority Leader Kim Abbott, D-Helena, and Senate Minority Leader Jill Cohenour, D-East Helena, wrote in a letter sent to Senate President Mark Blasdel, R-Kalispell.

They continued, “LGBTQ Montanans have always been valued members of our communities, and they deserve the basic dignity and respect owed to everyone in our state — the most basic of which is to be able to live their lives without fear of violence.”

In an interview with a local blog Manzella claimed that the Missoulian newspaper’s education reporter Skylar Rispens had reported her remarks out of context. Helena NBC News affiliate KTVH reported Friday that Manzella said that she wasn’t condoning or encouraging violence against gay Montanans. “I did not say anything about violence or hate,” she said.

Sen. Diane Sands, D-Missoula, said Friday that if Manzella is not justifying violence against gays, she should retract the statement. “I think it’s a very damn thin line between condoning violence or inciting violence, against people you don’t agree with,” Sands said.

Bryce Bennett, a former state senator from Missoula, told KTVH Friday that gays shouldn’t have to accept that violence is a consequence “of just living your life.”

“I don’t think people like Theresa Manzella understand how hard it is to grow up as an LGBT person in a state like Montana, and the constant threats of violence, every day,” he said.

In a Twitter thread, the Missoulian newspaper’s education reporter Skylar Rispens disputed Manzella claims:

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