‘A punch in the gut when we were already down’

HELENA — Sen. Bryce Bennett has been watching a specific type of policy circulate through the Montana Legislature for a decade, since he first served in the 2011 session. 

Then a representative, and one of the few openly gay legislators in the state Capitol, Bennett recalls the introduction of a bill that would have prohibited local jurisdictions from passing nondiscrimination ordinances, measures intended to increase legal protections for LGBTQ residents who may experience unfair treatment in housing, employment or other services because of their gender identity or sexual orientation.

To Bennett, D-Missoula, the intent of the bill was “devastating.”

“We’re not talking about tax policy or, you know, other bills where people can have earnest disagreements,” he said during a recent phone interview. “We’re talking about whether folks like me deserve to live a life free of discrimination or whether the state could just pull the rug out from under us.”

That particular bill died in committee, for which Bennett said he was “eternally grateful.” 

Ten years later, though, the 35-year-old lawmaker sounds similarly dejected when describing the current slew of bills in the 67th Legislature that would negatively affect LGBTQ people. On a Monday night less than halfway through the session, he also sounded exhausted when acknowledging how hard it is for legislators and lobbyists to stop such proposals from becoming law.

“We continue to face these issues every single session, because there are always going to be people in the Montana Legislature that are going to bring anti-LGBT bills because that is a deeply held conviction for them,” Bennett said. “We will be fighting these same battles for a long time.”

WAVE OF LEGISLATION

In the first two months of the 2021 legislative session, advocates have been tracking roughly a half-dozen bills that, if enacted, could seriously interfere with the lives of LGBTQ people in Montana. Some are reintroductions of bills that have failed in the past. Others are new to lawmakers and lobbyists this year. 

Perhaps the most publicized have been House Bills 112 and 113, measures that would, respectively, block transgender women and girls from participating in women’s interscholastic sports and deny gender-affirming medical treatments to nonbinary and transgender youth experiencing gender dysphoria. Both bills were carried by Rep. John Fuller, R-Kalispell.

The first mirrors efforts in other states meant to shield cisgender women athletes from unfair competion against their transgender peers, who proponents say generally enjoy physical advantages in sports, regardless of age or efforts to suppress testosterone levels. It passed the House in January after an extensive floor debate, and now awaits a hearing before the Senate Judiciary Committee. If signed into law by Gov. Greg Gianforte, opponents have said, it is likely to face legal challenges, particularly given that a similar bill in Idaho has recently been blocked by a federal judge.

The latter of the two bills has followed a more unpredictable course. By proposing significant government interventions in deliberations between a patient, their family and medical providers, House Bill 113 lost votes on the floor and narrowly failed to pass the final hurdle in that chamber. For people who had been tirelessly lobbying ahead of the vote, the path to victory was tumultuous. 

“I have an enormous amount of respect for the Republican legislators and the Democrats who voted against that bill,” said SK Rossi, a former lobbyist for the ACLU of Montana who currently represents the cities of Missoula and Bozeman. “Those votes are hard for the Republican caucus, and I understand that.”

The satisfaction of beating the bill back, however, was relatively short-lived. Within weeks, Fuller introduced a new version of the measure, rechristened as House Bill 427. Rather than banning access to the puberty suppressants and hormone treatments that youth can be prescribed after being diagnosed with gender dysphoria, Fuller’s new proposal specifically bans rare surgical treatments for transgender or nonbinary minors, including mastectomies or breast augementations that otherwise remain accessible to cisgender teens. 

The introduction of the revised bill, Rossi said, stung badly. 

“I think the fact that the community really came out, especially the trans and nonbinary community and our friends and loved ones, to put that bill down, and the resoponse to that was to bring it back, was exceptionaly demoralizing to the LGBTQ community,” Rossi said. “And the callousness of bringing that bill back, even in a more narrow form, is not lost on the community. It really felt like a punch in the gut when we were already down.”

When HB 427 came before the House Judiciary Committee, the strain on the LGBTQ advocates in the room became apparent, particularly after testimony from bill proponents. Of the four people who spoke in favor of the proposal, three made derogatory remarks about transgender and nonbinary people, citing personally held religious or social beliefs. One of them was part of the national anti-LGBTQ group MassResistance, which has been labeled a hate group by the Southern Poverty Law Center. 

Fuller’s stated motivation for bringing both versions of the bill, as he has repeatedly said in public statements, is not one of animus. Rather, he does not think minors should be allowed to make significant medical decisions that he says they may later regret. The government, according to Fuller, has an interest in superseding parents and guardians when they are not acting in the best interest of the child.

“I believe, and I think Montanans believe, that children should be free from either parental, peer or cultural pressure to deal with their gender confusion by starting down a one-way road to lifelong medical intervention,” Fuller said in remarks on HB 427 before the committee. “A child experiencing body dissatisfaction needs care, counseling, compassion and guidance, addressing the real cause of the distress. Protecting children from surgical procedures that are purely cosmetic and irreversible is necessary and proper.”

Opponents of HB 113 and HB 427 have repeatedly said that Fuller’s bills represent fundamental misunderstandings about trans and nonbinary people. They reiterate that gender dysphoria is a legitimate and widely accepted medical diagnosis that merits a range of responses, including medical treatments. Bill proponents who support banning those treatments, advocates say, are negating the reality of those experiences.

“This is again, I think, disguising the fact that there is a deeply held belief that trans and nonbinary identities aren’t real,” said SJ Howell, the executive director of Montana Women Vote. “And so you might think, at 16, that you are trans or nonbinary, but you’re surely going to grow up and regret that. You’re going to grow out of it because it’s not real. You know, it’s a phase,” they continued, characterizing the perspective of proponents. “And we’ve litigated this in both science and public opinion already. Being trans is not a mental illness. I mean, that’s clear. But this [bill] is for sure treating it as such.”

House Bill 427 passed out of the House Judiciary Committee by the same margin as the previous version. Only one Republican joined Democrats in voting against the bill, making the final tally 11-8. It is scheduled for a floor debate Wednesday afternoon.

NEW CHAPTER, OLD FIGHT

The current focus on transgender and nonbinary youth, advocates say, is a new element in a longer fight against bills that would adversely affect LGBTQ Montanans. A previous bill in 2017, sponsored by then-Rep. Carl Glimm, R-Kila, would have impacted transgender people in general by requiring the use of public bathrooms and locker rooms that correspond to the gender a person was assigned at birth. That bill died in the House Judiciary Committee after exhaustive testimony and targeted lobbying by advocates, and has not been re-introduced.

Other bills from past sessions are resurfacing this year. A Religious Freedom Restoration Act, also sponsored by Glimm, died in 2015 by the narrowest margin on the House floor. Glimm, now a senator, has brought the proposal again this year, a measure he describes as bolstering protections for religious expression and increasing scrutiny for the government when it seeks to interfere with faith-based beliefs.

“When you bring a case, you have three things [the court considers]. Do you have a sincere belief in your religion that makes you think that you are doing the right thing?” Glimm explained to lawmakers on the Senate Judiciary Committee. “And then the court needs to look at it [and ask], is there a compelling interest for the government to put a restriction on that? And if there is a compelling government interest, then they must use the least restrictive means possible, and that’s all that this bill does.”

Senate Bill 215, supported by Christian conservative groups including the Montana Family Foundation and the Alliance Defending Freedom, would likely have consequences for Montanans far beyond the experiences of LGBTQ people. For some advocates, however, the prospect of giving religious liberties added protections in court spells out the likelihood of increased and legally protected discrimination.

“This invites claimants to say that any time they object to a law, including laws that enshrine protection for LGBTQ Montanans and others against discrimination … they can refuse to comply with those laws,” said ACLU of Montana Executive Director Caitlin Borgmann during the committee hearing. “We don’t have to speculate about what kinds of claims can be raised, because these have happened in other states. Pharmacists have refused to fill prescriptions. Businesses that are supposed to be open to the public have refused to serve LGBTQ customers. Health care providers have refused to provide in vitro fertilization to lesbian couples … this bill opens the door to exactly those kinds of discrimination that we have seen countless times in other states.”

Nearly 20 people echoed Borgmann’s concerns during the committee hearing, including representatives of the Montana League of Cities and Towns, Montana Native Vote, the Indigenous Organizers Collective and the Montana Medical Association. Four people spoke in favor of the bill, some of whom repeatedly denied that discrimination is at the heart of the bill. 

When lawmakers began asking questions of people testifying and the bill sponsor, Bennett asked to speak directly to Glimm. 

“This bill would allow people like me to be denied housing, to be kicked out of restaurants, to be denied health care, to be fired from my job, not because of something that I did, but simply because of who I am,” Bennett said. “I want you to look me in the eyes and tell me why you deserve a life free of discrimination and people like me don’t.”

“Sen. Bennett, I don’t believe that any of those examples that you just said are true,” Glimm responded. “I don’t believe that this bill would allow any of those things to happen. I don’t believe that this bill would allow that discrimination to happen. This bill is not a blanket license to discriminate.”

When lawmakers returned to the bill a few days later to debate among themselves and cast their votes, statements from Bennett and other lawmakers were similarly strained. The bill passed on a party-line vote and is set to advance to the Senate floor.

AN EMOTIONAL TOLL

When LGBTQ lawmakers and lobbyists prepare to wrangle votes against these bills, during past sessions and this year, they describe a range of rhetorical tools at their disposal. 

“When we lobby on these bills, we come with [information about] fiscal impact and we talk about jobs … we talk about privacy and constitutionality and the legal challenges and the costs of that,” said Howell, of Montana Women Vote. 

But this session, they said, those tactics are not resonating as effectively as they have in the past. 

“I’m seeing and experiencing a session where … we find legislators unwilling to listen to any of those things, and really willing to disregard all of those points,” Howell said. “And so we’re left with no choice but to share personal stories. Our own personal stories. Then to see those also disregarded is a pretty difficult experience.”

Part of that change, Howell suggested, may be a result of Gianforte’s election as the state’s first Republican governor in 16 years, as well as the substantial margins by which Republicans hold control in the state House and Senate. Without having to accommodate the policy agenda or veto pen of a Democratic governor, Howell said, some Republicans may feel unencumbered in their push for legislating social issues. Other members of the Republican caucus, Howell said, also may feel less compelled to compromise with Democrats on controversial topics.

“I think that there are some folks who actually understand and care about the harm that is done by these bills … I think those folks exist, but not 17 of them. Not enough to kill a bill on the [House] floor,” Howell said. “I think the others care because it makes them look bad, because it’s a waste of time and energy, because they get bad press … or, in past sessions, because it puts at risk their policy priorities. And that’s the piece that’s gone [this year],” Howell explained.

One ramification of that shift in the state’s political balance, which other LGBTQ advocates also described, is a heightened emphasis on sharing personal experiences in a very public place. 

“I tell my friends that it’s the thing that I most dread every session,” Bennett said. “Because it’s just so deeply, deeply emotional. And so personal and so raw … I mean, you’re pleading with the other folks in the chamber to walk back from the precipice and not steal away the handful of protections that make it possible for people who already experience discrimination every single day to just get by.”

The energy required to fight this slate of bills, opponents say, is immense. And taken together, the focus on social issues threatens to limit the oxygen available for other political priorities advocates and Democrats care about.

“We feel like we’ve been laser-focused on putting forward policies that create economic opportunity for Montanans, protecting access to health care, continuing our investment in education … and I don’t think that we’ve taken our foot off the gas on that,” said House Minority Leader Kim Abbott, D-Helena. “But yeah, we’re clearly playing a lot of defense. But we can play both sides of the board. We’re a scrappy bunch.”

Abbott and other advocates argue that the fate of these bills is not set in stone. As previous sessions have shown, sometimes bills undermining the rights and freedoms of LGBTQ people fail in surprising plot twists, whether in committee votes or on the chamber floor. As the Legislature prepares for its transmittal deadline on March 3, when all introduced bills have to either advance to the other chamber or effectively die, advocates say they are marshalling their resources for the remainder of the session.

“[The strategy is] to put the stories of LGBTQ people front and center. It’s to ask legislators to stare their constituents in the face and hear how harmful these bills are,” Rossi said. “I think it’s inevitable that every single one of these bills will eventually go down in flames. They are backwards and amoral and so clearly on the wrong side of history. But we haven’t gotten there yet.”

Looking ahead, Rossi acknowledged that there remains the possibility of having to fight these bills in court. They also made it clear, however, that such a route is less than ideal.

“When we litigate these issues, we get wrapped up in this drama where it’s LGBTQ people against someone else,” they said. “Legislators who are considering these bills need to seek out and speak with people in their communities about how they would be impacted right now. We shouldn’t have to litigate. We should get legislators to see the humanity of the LGBTQ people in Montana.”

Until the sessions adjourns, Rossi said, that’s exactly what advocates will be focused on achieving. 

“These bills aren’t dead until sine die,” they said, referencing the Legislature’s last day. “If they’re still moving, we will be fighting tooth and nail.”