Is Montana's Defiance of 'Illegal' Court Order a Model That Other Conservative States Should Follow?

AP Photo/Armando Franca

Well, now. As radical federal judges across America continue to undo conservative programs and initiatives, including much of the work of the Trump administration, the state of Montana has defied a court order on transgender birth certificates. Could this be a model for other conservative states? Maybe so.


The left is fond of its “Resist” slogan. It’s past time for conservatives to resist, as well — in earnest.

Just hours after a Montana judge blocked health officials from enforcing a state rule that would prevent transgender people from changing the gender on their birth certificate, as reported by AP, the Republican-run state on Thursday said it would defy the order.

District Court Judge Michael Moses slammed attorneys for the state during a hearing for circumventing his April order that temporarily blocked a 2021 Montana law that blocked a 2017 Department of Public Health and Human Services rule that allowed people to “update” the gender on their birth certificate by filing an affidavit with the department. Montana’s Republican-controlled state legislature said in effect:

“Yeah, no — we’re going to continue to follow our 2021 law, take a hike.”

Before the 2021 Montana State Legislature passed the challenged law, transgender residents seeking to change their birth gender on their birth certificates needed only to provide an affidavit to the state health department. The temporary injunction puts that process back in place.

Obviously intent on ruling against the 2021 law, Moses ruled the law “constitutionally vague” because it does not specify what surgical procedure must be performed. Wait — what?

A biological male taking hormones and lopping off this or adding that and claiming to be female is what it is, or am I missing something? That said, the 2021 law did allow transgender people to obtain a court order indicating they’d had a surgical procedure. Because Moses declared the relevant language “constitutionally vague,” he said, he didn’t further analyze the constitutionality of the law.


Nonetheless, Charlie Brereton, director of the Montana Department of Public Health and Human Services, said the state will ignore the judge’s ruling.

The Department thoroughly evaluated the judge’s vague April 2022 decision and crafted our final rule to be consistent with the decision. It’s unfortunate that the judge’s ruling today does not square with his vague April decision. The 2022 final rule that the Department issued on September 9 remains in effect, and we are carefully considering next steps.

The legal dispute comes as conservative lawmakers in multiple states have sought to curtail transgender “rights,” including the “right” of transgender athletes to “compete” — kick the hell out of — biological females in women’s and girl’s sports.

The judge’s injunction has not yet prevented Montana from attempting to enforce restrictions on changing birth certificates. A final ruling in the case providing more permanent relief is still to come.

Meanwhile, the Montana case will be an interesting one to continue to watch unfold.

Activist left-wing judges legislating from the bench is not a component of a democratic society. Daniel Greenfield, a Shillman Journalism Fellow at the David Horowitz Freedom Center, called Judge Michael Moses’s order “illegal” in a Friday opinion piece, arguing:

The “law” isn’t what a judge or a king says it is. It’s what elected officials representing the people say that it is. The role of judges is to implement those laws, not to make them.

Rome, King George III’s regime, and Nazi Germany were nations of laws. What made America unique was that its laws limited government authority and made government subject to the people rather than the other way around.

Montana’s legislature represents the people. Judge Moses does not.

It’s un-American to argue otherwise.


That said, America cannot exist as a nation of people, governments, and institutions selectively following only laws with which they agree.

On the other hand, when do we get to a point when the left legislates from the bench through activist judges because it cannot pass laws in concurrence with its radical agenda — to the point of destroying America as we know it?

Follow Montana‘s example.



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