This year Republican lawmakers in Montana introduced eight bills threatening the civil rights of the state’s transgender and gender nonconforming citizens.
Five of those proposals could still become law, including a ban on gender-affirming care for minors that’s awaiting the signature of Montana Gov. Greg Gianforte. Republicans are also preventing a transgender representative in the state, Zooey Zephyr (D-Missoula), from speaking on the House floor. More on that later.
Though Montana’s bills take part in a deliberate anti-trans campaign built on bunk science and extremist ideology, the politicians over in big sky country, where only 3 percent of the population openly identifies as LGBTQ, are passing some particularly radical pieces of legislation, proposals that push the limits of the state’s own founding documents and leverage religious exemptions in potentially dubious ways.
Jim Nelson, an associate justice in the Montana Supreme Court from 1993 to 2012, said “white christian-nationalists” who do not “give a damn about the constitution or what it says” dominate the current Legislature.
“They ignore it,” he said. “They’ve done it on this [gender-affirming care] issue. They’ve done it on environmental issues, they’ve done it on privacy issues, and they try to get around it by adopting statutes to amend the constitution, which any first-year law student will tell you [that] you can’t amend the constitution by adopting a statute. These people don’t care. For every bill they write where they can slip it in some way, there’s a religious component… it drives you absolutely up a wall”
Speaking of Constitutional Issues
One bill that may test the limits of Montana’s constitution is Senate Bill 99, a youth care ban that Gov. Gianforte has indicated he will sign. The bill outlaws medical interventions for trans children and prohibits the use of public funds, programs (including Medicaid), and buildings for youth care.
This proposal goes as far as preventing public resources from being used even to “promote” or “advocate” social transition, like when a child experiments with a different name, pronouns, clothes, or a haircut.
That could prevent public school officials and teachers from addressing what’s happening with a trans student in their classrooms, according to the ACLU of Montana.
“It tries to frame being trans as being more of an ideology, rather than an identity or embodiment,” said ACLU Policy Director Keegan Medrano. “It attempts to, in that framing, limit free speech.”
SB 99 also threatens to bankrupt doctors for providing gender-affirming care to a child, slapping them with a professional misconduct violation and suspending their medical license for at least one year.
These health care providers could also be liable for civil suits over trans-related youth care for a quarter century, and the state would prohibit medical liability insurance from protecting their livelihoods in those suits.
“It is a direct attack on trans people in Montana,” Rep. Zephyr said in a phone interview. “It is an attempt to take away life-saving care, to go against the needs of trans youth and their parents and doctors and all of the best practices from every major medical association from across the country.”
There are an estimated 500 trans children currently living in Montana’s vast expanse, according to data from the Williams Institute at UCLA’s School of Law. That’s less than one-tenth of one percent of the population.
The ACLU of Montana has announced plans to partner with the national ACLU and Lambda Legal to challenge SB 99 in court, but a representative did not discuss specifics of their legal strategy.
“Montana’s Supreme Court has upheld that the intrinsic worth and basic humanities of persons may not be violated,” said ACLU of Montana’s senior staff attorney Akilah Deernose. “That concept is very powerful and easy to understand.”
Silencing a Trans Lawmaker
Zooey Zephyr has been one of the loudest opponents of anti-trans bills in Montana this year. And now Republicans are trying to keep her from speaking on any bill for the rest of the session.
The first openly trans state representative in Montana history has delivered several impassioned speeches on the House floor in defense of trans rights, including her condemnation last week of SB 99.
“I hope the next time there’s an invocation, when you bow your heads in prayer, you see the blood on your hands,” she told legislators during a hearing over bill amendments requested by the Governor.
Her rebuke angered 21 Republicans in Montana’s right-wing Freedom Caucus.
In a letter, they demanded Zephyr be censured “for trying to shame the Montana legislative body and by using inappropriate and uncalled-for language during a floor debate.” The sponsor of SB 99, John Fuller, is a transitional member of the state’s Freedom Caucus. He signed the letter.
In the same breath as requesting a “commitment to civil discourse,” the Freedom Caucus misgendered Zephyr while tweeting the letter. Initial coverage of this ongoing story led with that rude gesture from Republicans, burying the lede: Though the Legislature has yet to complete the formal process of censuring, they still aren’t letting her talk.
The Republican Party of Montana is refusing to allow me—a transgender Representative—to speak on any bill. This is fundamentally undemocratic.— Rep. Zooey Zephyr (@ZoAndBehold) April 20, 2023
My light is on, and I am ready to speak on behalf of the constituents who elected me to do so. pic.twitter.com/pdijLUQsCc
Last Thursday, Speaker of the House Matt Regier did not call on Zephyr when she requested to speak on a bill that would change the definition of sex in Montana law. Regier did it again Friday.
Speaker Regier and the House Rules Committee say he possesses the authority to refuse to recognize someone anyway.
House Republicans want Zephyr to apologize for her comments, and it is unclear if they will let her speak until she does.
In a statement, Zephyr called their behavior “fundamentally undemocratic” and an assault on the “principles of our democracy.”
This situation came to a head Monday, when police arrested seven protestors who chanted “Let Her Speak” from the gallery above the House floor as Zephyr held a microphone above her head. The Lewis and Clark County Sheriff's Office told the Washington Post they arrested the protestors on misdemeanor charges of criminal trespassing. Zephyr left the Capitol to follow and aid the demonstrators, six of whom are her constituents.
Earlier in the day, protesters gathered on the steps of the Montana State Capitol in support of Zephyr, stretching a banner across the building reading in bright red capital letters: DEMOCRACY DIES HERE.
The front of the Montana Capital Building has had a banner stretched across it with “Democracy Dies Here” over the Speaker denying Rep Zooey Zephyr the right to speak on any bill moving forward. pic.twitter.com/4A48FCcokC— Erin Reed (@ErinInTheMorn) April 24, 2023
After the arrests, the Freedom Caucus called for lawmakers to discipline Zephyr because a “small minority of people disrupted the business of all Montanans.”
The actions of House Republicans in Montana echo GOP actions in Tennessee this month, where Republican legislators expelled two Black lawmakers who protested in favor of considering gun legislation this session following a mass shooting at a Christian elementary school in Nashville. Both men have since been reinstated.
In March, Republicans censured Mauree Turner of Oklahoma, the first out nonbinary state legislator in US history, for offering their office to a protester after arrest. Turner had spoken out against the state’s ban on youth care.
All three calls for “order” or “decorum” in these legislative bodies are aimed at minority lawmakers who are speaking out against actions or bills they believe will harm them and their constituents.
Zephyr’s Democratic colleagues have also spoken up, including House Minority Leader Kim Abbott (D-Helena).
“The language used by the so-called Freedom Caucus, including the intentional and repeated misgendering of Rep. Zephyr, is blatantly disrespectful and the farthest thing imaginable from the ‘commitment to civil discourse’ that these letter writers demand,” she said in a statement. “I find it incredibly ironic that these legislators are making demands of others that they refuse to abide by themselves.”
The Montana American Indian Caucus also denounced the actions of The Freedom Caucus.
Transphobia Might Be Expensive for Montana
Senate Bill 458 asks a bold question: Is redefining sex in Montana law worth risking $7.5 billion–half of the state’s budget–in federal funding?
Sen. Carl Glimm (R-Kila), the bill’s primary sponsor, didn’t return a request for comment sent more than two weeks ago. We reminded him last Friday, but we didn’t hear back.
His sprawling 61-page bill seeks to revise 40 statutes of Montana law that deal with sex. Glimm’s bill defines men and women in two discrete categories of sperm and egg producers, snubbing gender for a rigid definition of sex.
Former Montana Supreme Court Justice Nelson says the financial risk is moot if the bill doesn’t pass constitutional muster.
“If this bill is challenged, which hopefully it will be and it should be, I think it would be declared unconstitutional,” he said. “It essentially legalizes discrimination on the basis of a whole bunch of different things. It includes sex. S-e-x. If your gender designation doesn’t comply with being male or female, you apparently don’t have any sex.”
Nelson would know–he wrote several Montana Supreme Court decisions relating to privacy and individual dignity.
“At least in my view that means that if somebody wants to discriminate against transgender persons, which for God's sakes they are doing already… they can do so and say they're not included in the definition of sex, so they’re fair game,” he said.
If passed, the bill would not only wipe transgender and intersex people from state non-discrimination protections and limit their basic access to many core areas of everyday life–it would write them out of legal existence.
For instance, the bill prevents trans and nonbinary people from getting drivers licenses and marriage certificates that reflect who they are; economically, it blocks the state from looking at wage gaps that trans people face.
That’s a scary prospect for trans people in Montana. “It is discrimination from cradle to grave,” Zephyr said.
Lawyers say the answer to this $7.5 billion dollar question depends on a series of ifs and potential actions by state agencies.
Let’s say Gov. Gianforte signs this bill into law. The money would not just vanish overnight. In fact, nothing happens right away: The subsequent actions of state agencies determine whether or not federal dollars are ever in jeopardy.
Federal funding and contracts, i.e. the money states get from the feds, require states to comply with our country’s non-discrimination laws and policies. Essentially, states have to play ball.
But if these state agencies act on this new definition of sex and violate federal non-discrimination policies protecting transgender and intersex people on the basis of sex in the process, then they very well may face lawsuits; the federal government may withhold money.
But if state agencies ignore this bill, all the Legislature would have accomplished is enshrining a mean-spirited policy into law.
Glimm’s initial fiscal note said the bill would cost the state nada. An expanded fiscal analysis of the bill found SB 458 could create conflicts with federal laws like Title IX or the Federal Civil Rights Act of 1964, which protect transgender individuals, and in effect defund the state’s public institutions.
Opponents say it is unclear why lawmakers are willing to gamble public money on behalf of Montanans, who would certainly notice a missing billion dollars (or seven) in their public institutions.
I asked bill sponsor Sen. Glimm why his bill was necessary, if it violated the state’s constitution, and if it treated transgender Montanans fairly. I’ll update this post if I hear back.
Glimm, a member of the Freedom Caucus, signed the letter to censure Zephyr.
Montana Wants to Legalize Being Mean to Trans Kids
House Bill 361 would protect students if they misgender or misname their classmates at schools in Montana. This proposal awaits Gov. Gianforte’s signature.
Bill sponsor Rep. Brandon Ler (R-Savage) introduced the legislation with a charming story about his family.
“My wife–and three kids–we live on a farm and ranch,” he said. “My kids have learned from a very young age that cows are cows and bulls are bulls… These facts are not up to interpretation.”
Ler, who was on the House floor and did not respond to our request for comment, argues that students should be able to hold their own beliefs.
Okay, but what if a trans student *believes* their classmates shouldn’t bully them?
An amendment to the bill made it so schools could still discipline students if this behavior rose to the state’s definition of bullying, which includes harassment, intimidation, hazing, threats, or insults severely and persistently directed at a student in a way that can cause physical harm or create a hostile environment that interferes with their ability to learn.
Opponents say that intentionally deadnaming and misgendering a trans student repeatedly and on purpose does meet that definition of bullying, and this bill could make it harder to prove it is happening.
Medrano from the ACLU says a fear that schools will punish children for even accidentally saying the wrong name to their peers came up on the House floor.
“This idea that if you misgender someone one time you’re going to be expelled from school… is created out of fear [and] anxiety,” they said. “A lot of the times when we hear about SB 99, we hear [trans kids] just need to grow up. At the same time, we’re bringing forward a bill that says, ‘Actually–not only can you not get medical care [SB 99] but we’re not even going to protect you if you’re going to change your name or your pronouns. So this entire argument falls flat because of the way they’re moving forward on these pieces of legislation.”
Rep. Mike Hopkins, also of Missoula, argued that respecting others was a choice, and so making students respect others “flagrantly” violated their First Amendment rights.
Religious Exemptions that Could Endanger Trans Care
House Bill 303 is a religious liberty bill. It allows medical providers, health care companies, hospitals, medical institutions including schools, and insurance companies to deny treatment and coverage on the basis of “conscience,” potentially allowing for bias in health care settings.
The bill, which has drawn support from conservative religious groups such as the Alliance Defending Freedom and the Montana Family Foundation, is a broad extension of religious protections for medical providers in the state of Montana.
For example, the state’s constitution protects abortion on privacy grounds, but providers do not have to perform an abortion if they have a moral or religious objection to the procedure.
HB 303 is very broad, and it goes far beyond the scope of exempting a doctor from providing an abortion or gender-affirming care.
The bill defines health care services as medical research or medical care provided to a patient at any time during their treatment that includes and isn’t limited to “initial examination,” “testing,” “diagnosis,” “referral,” “medication,” “research,” “prognosis,” “therapy,” “notes related to treatment,” and surgery.
The bill would also require facilities to obtain written consent from employees willing to perform, facilitate, refer for or participate in abortions. It does, however, carve out an exemption for emergency care with an immediate risk of death, which doctors are legally required to provide—no matter what.
Under this policy, medical practitioners would also be protected from termination, demotion, denial of board certification, and a whole host of disciplinary actions.
Bill sponsor Amy Regier (R-Kalispell) was a nurse. She defended her bill as “procedure-based, not person-based” legislation that allows doctors to object to certain elective procedures.
The Montana Medical Association, the Montana Hospital Association, the Montana Nurses Association, the Montana Primary Care Association, Planned Parenthood of Montana, and the American Academy of Pediatric’s Montana chapter do not agree with Regier’s assessment.
Those industry groups opposed HB 303 on the grounds it could undermine a medical provider’s responsibility to their patients.
A policy expert with the ACLU of Montana said the bill’s unqualified language allows providers to discriminate, carte-blanche.
Medrano argues the legislation could lead to segregation of the Montana medical system into doctors who are conservative and doctors who are liberal. That’s a problem anywhere, but it’s a big one in a big state like Montana, the third least-densely populated state in the US behind Wyoming and Alaska.
If you live in a rural area and a doctor refuses to treat you, then a willing physician could be 40 miles away or farther, said Medrano. This added distance could lead to delayed care and worse health outcomes overall.
Queer people know the immoral consequences of conscience objections. During the 1980s and 1990s, countless gay men, trans women, and other queer people died in agony as medical providers and the Federal government did little to ease their suffering from AIDS.
Transgender man Robert Eads, the subject of the 2001 documentary film Southern Comfort, died from ovarian cancer after more than a dozen doctors refused to treat him out of fear it would damage their reputations. At the end of his life, Eads found a willing doctor, but his cancer had progressed too far.
In 1995, a Black transgender woman named Tyra Hunter died from injuries sustained during a car accident. EMTs withdrew medical treatment for several minutes after cutting open Hunter’s pants and discovering her penis.
The District of Columbia was found responsible for her death because ER staff at DC General Hospital did not follow the nationally accepted standards of care. The city paid out $2.9 million dollars, according to a Washington Post article that repeatedly misnamed and misgendered Hunter.
Her death is a real fear for every trans person–that when something bad happens, the people who are supposed to help you won’t. It is important to note the exception for emergency care theoretically prevents a death like Hunter’s.
We sent an email to bill sponsor Regier asking if her bill would allow doctors to discriminate against transgender people seeking care unrelated to transition. We also asked if personal belief should impact the care doctors provide, if her bill violated medical ethics codes, or put rural Montanans at risk. She was on the House floor and did not respond.
In the face of all this, queer people still thrive in Montana, but many of their lawmakers want to make it much harder for them to do so.
“All of the bills targeting the LGBTQ community, and the trans community specifically, are designed to push queer people out of public life,” Zephyr said. “I think what gets missed is how much opposition there is to these hateful bills. We get an overwhelming number of emails opposing these bills. We have overwhelming numbers of opponents in the committees coming forward. These bills create harm to the trans community, but they cannot snuff out trans joy.”