Rep. Pat Flowers, D-Missoula (standing) speaks on House Bill 112 on the Senate floor March 30, 2021. Credit: Mara Silvers/MTFP

HELENA —  Republican lawmakers this week advanced two bills that have been strenuously opposed by Democrats and advocates for LGBTQ civil rights. The debates on the Senate and House floors showed sharply polarized factions within both parties, with some Republicans voting alongside Democrats to approve amendments intended to temper the legislation, only one of which was successful.

State representatives on Wednesday vigorously debated the Montana Religious Freedom Restoration Act (RFRA), Senate Bill 215, which supporters say would increase legal protections for religious expression and allow parties to claim an exemption from laws and policies if they are found to “substantially burden” their religious liberties. Opponents have pushed back against the measure, saying it could open the door to increased discrimination under the auspice of faith, an analysis some supporters of the bill refute.

“If a state precluded some sort of conduct that burdens the free exercise of religion, then the person who suffered that burden would have the ability to go to court and say this is not something in which the government has a compelling interest to burden,” said Rep. Bill Mercer, R-Billings, who added that two of his closest friends are gay and that he does not see the bill as “dramatically alter[ing] their rights.”

Lawmakers speaking against the bill said that using the RFRA as a “shield” for religious rights could have detrimental effects on others.

“This bill would allow a family therapist to refuse to help an unwed mother. It would allow a pharmacist to refuse to prescribe HIV medications or oral contraceptive pills,” said Rep. Laurie Bishop, D-Livingston. “… I just ask you, that as you consider this legislation, that you’d not only think about that which you want to protect, I understand that, but rather, I ask you to consider how others might use this legislation in ways that you do not intend.”

“Title IX brought true diversity to the sports world, increased educational opportunities and successes for women. [Transgender women] pose a threat to women’s sports and present a form of discrimination to women.”

Sen. Keith Regier, R-Kalispell

In response to some Republican claims that the bill will not be a green-light for discrimination, House Minority Leader Kim Abbott, D-Helena, introduced an amendment explicitly stating that the RFRA may not be used to justify discrimination as outlined in the protections of the Montana Human Rights Act and local nondiscrimination ordinances passed in a handful of cities. Several Republicans rejected the proposed change.

“Allowing the language which would cite employment code, for instance, that would cite housing codes, that would cite nondiscrimination ordinance, to me it would completely undo the meaning of the bill in saying that we have the right to hold and exercise our religious beliefs,” said Rep. Seth Berglee, R-Joliet, who carried the bill on the House floor. 

The amendment narrowly failed, 53-47. Concurrently, SB 215 passed second reading by a broader margin, 61-39.

Gov. Greg Gianforte’s administration has already signalled the governor will sign the bill once it reaches his desk. Lt. Gov. Kristen Juras, who watched the late-night floor session from the House gallery, said afterward that she valued the debate.

“It’s complicated,” she said. “What do you do when two competing rights are evaluated under strict scrutiny? That doesn’t mean that religion wins automatically. It’s going to be a balancing act that courts will have to decide.”

Earlier in the week, Senate lawmakers considered another hotly contested social bill that seeks to ban transgender girls and women from competing on women’s school sports teams, echoeing bills in other states that would place restrictions on transgender athletes. 

House Bill 112 passed second reading in the Senate on Tuesday, with Republicans championing the measure as a way to prevent what they posit as unfair competition between athletes who were assigned male at birth and their peers who are cisgender women, regardless of whether transgender students have reached puberty, taken hormone suppressants, or are using hormones to lower their testosterone levels, per NCAA guidelines. 

“Title IX brought true diversity to the sports world, increased educational opportunities and successes for women,” said Sen. Keith Regier, R-Kalispell, referring to the federal statute passed in 1972. “[Transgender women] pose a threat to women’s sports and present a form of discrimination to women,” he continued. Regier had previously characterized transgender sex transition as a “lie” similar to Nazi propaganda.

Democrats refuted claims that a small number of transgender athletes can infringe on opportunities for cisgender athletes, and said that enforcing the bill would violate the privacy of all female athletes. Several opponents urged fellow lawmakers to consider participation in sports as an invaluable opportunity for young people, particularly for transgender youth who may already experience hostility in school. 

“There are psychological benefits regarding self-esteem and their sense of well-being that comes from belonging on a team and having the friendships that developed from the team,” said Sen. Pat Flowers, D-Bozeman. “… All [this bill] will do is tell transgender girls and women they don’t belong.”

“It again was incredibly heartbreaking to see our state leaders publicly talk about transgender youth in a way that only significantly contributes to the stigma and discrimination that they are already navigating every day. It absolutely made me want to protect all the transgender kids I know from even having to hear that [rhetoric] from our state elected officials.”

BOZEMAN PEDIATRICIAN Kathryn Lowe

Speaking against the bill, Sen. Dan Salomon, R-Ronan, raised additional concerns about potential economic fallout if the proposal is signed into law. He said it runs counter to the Biden administration’s policy prohibiting discrimination on the basis of sexual orientation and gender identity, as well as the administration’s interpretation of Title IX, and could put schools and universities at risk of losing federal funds and facing boycotts from the NCAA. 

“If you want to take this chance on the educational future of hundreds of thousands of kids, this is your opportunity,” Solomon said. “And if you don’t ever want to watch a home football playoff game in Montana, again, your choice.”

Based on that argument, Solomon introduced an amendment that would make the legislation void if the office of civil rights within the federal Department of Education promises enforcement action. The amendment passed 27-23, with a number of Republicans joining Democrats to vote in favor.

Ultimately, the amended bill passed 29-21, dealing a victory to the bill’s conservative proponents and a blow to the families, educators and medical providers who have been fighting against it for several months.

“It again was incredibly heartbreaking to see our state leaders publicly talk about transgender youth in a way that only significantly contributes to the stigma and discrimination that they are already navigating every day,” said Kathryn Lowe, a Bozeman-based pediatrician who opposes HB 112. “It absolutely made me want to protect all the transgender kids I know from even having to hear that [rhetoric] from our state elected officials. And it really frightened me to see that bill get one step closer to getting signed into law.”

If it clears one more procedural vote in the Senate, HB 112 is set to return to the House, where it had previously passed, for lawmakers to consider the bill as amended.

This story was updated April 1, 2021, to correct Sen. Pat Flowers’ district, which is Bozeman.

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Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.