Lawmakers, advocates prepare to fight legislative ‘attacks’ against LGBTQ people

For the second consecutive legislative session, advocates for LGBTQ rights are gearing up to protest a bill restricting transgender health care, as well as other proposals they say would discriminate against and further stigmatize LGBTQ people.

This session’s brewing conflict could mimic the dynamics of the 2021 Legislature, when conservative Republicans brought a slate of bills to restrict medical care for transgender minors and participation of student athletes, policies opposed by a diverse coalition of stakeholders. Two bills dealing with health care treatments for gender dysphoria were eventually rejected by moderate Republican and Democratic lawmakers. The bill barring transgender athletes from playing on sports teams aligned with their gender identity was signed into law by Gov. Greg Gianforte but later found unconstitutional by a district court judge as applied to colleges and universities. 

As the 2023 Legislature nears the end of its first month, the political feud over transgender rights and other LGBTQ issues appears set to play out again under the Capitol dome. Trans advocates, human rights groups and medical providers say they’re tracking a slate of anti-LGBTQ bills, but currently have their sights set on Senate Bill 99, sponsored by Sen. John Fuller, R-Kalispell, which is scheduled for its first hearing on Friday. 

“Across Montana, across the political aisle, people do not want to see these hateful attacks be perpetrated against the community who lives and works and communes with everyone in Montana,” Rep. Zooey Zephyr, D-Missoula, said at a Tuesday press conference. Zephyr and fellow freshman Rep. SJ Howell, D-Missoula, are Montana’s first openly transgender lawmakers.

If it becomes law, SB 99 would ban gender-affirming medical care for transgender minors, including treatments to postpone puberty, estrogen and testosterone hormone therapies and a variety of surgeries most often reserved for adults. The bill would also prohibit the use of public facilities and funds, including the state Medicaid program, to promote or provide medication or surgical treatment of minors for gender dysphoria. 

Other sections of the bill would bar public employees, property and facilities from advocating or promoting social transitioning, medication and surgery. Social transitioning, which can include the use of chosen names, pronouns, hairstyles and clothing, is described in part in Fuller’s bill as “the changing of a minor’s preferred pronouns or dress.” 

Nationwide, medical associations have laid out best-practice guidance and recommendations for considering health care options for transgender youth. Patients, families and providers are encouraged to work with multidisciplinary teams of health care practitioners to weigh age-appropriate interventions for gender dysphoria, such as reversible puberty blockers or hormone therapy for adolescents. Transgender health care experts and researchers have found that lack of access to gender-affirming treatment and social recognition can negatively impact mental health in an already disproportionally at-risk population.

Legislative records show SB 99 was originally scheduled to be heard by the Senate committee that deals with public health proposals. In a January conversation with Montana Free Press, Fuller said he requested the bill be transferred to the Senate Judiciary Committee, in part because he sees the bill as being about more than “a health issue” and because the latter committee meets in a bigger room with more space for in-person testimony.

Compared to the bills he brought last session, Fuller noted that SB 99 would not impose criminal penalties against medical practitioners who provide gender-affirming treatments to minors. Rather, the bill states that health care providers who provide medical or surgical treatments to minors would be engaging in “unprofessional conduct” and must face a minimum one-year suspension from practicing medicine or providing health care, a disciplinary action that is currently within the purview of the Board of Medical Examiners. 

The bill also opens a 25-year window of liability for civil lawsuits to be filed against health care providers who provide medical or surgical gender-affirmation treatments to minors, beginning when they turn 18, “if the treatment or the after-effects of the treatment result in any injury, including physical, psychological, emotional, or physiological harms.” A civil case could also be brought within four years of the “discovery” of a person’s injury related to past treatment, the bill says.

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Fuller said the bill’s language referencing public funds, employees and facilities is also distinct from his 2021 proposals and intentionally “not specific.” 

“Its goal is to stop the use of public funds from going to these types of procedures in general,” he said. 

At the Tuesday press conference, the president of Montana’s chapter of the American Academy of Pediatrics, Dr. Lauren Wilson, said her organization opposes SB 99, as does the Montana Medical Association, Montana Psychiatric Association, Montana Association of Pediatric Psychiatrists, Montana Primary Care Association, Montana Academy of Family Physicians, Montana Hospital Association and several other medical organizations.

While SB 99 remains a major focus, LGBTQ advocates are also tracking other bills and draft proposals. One of those bills, House Bill 234, would prohibit schools and museums from providing broadly defined “obscene” material to children, which some opponents fear would be used to single out LGBTQ-affirming books and curricula. Another unintroduced proposal, LC 1471, would ban drag performance in schools and libraries, described in the bill text as events where a person “exhibits a gender identity that is different than the performer’s gender assigned at birth using clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs for entertainment to appeal to a prurient interest.”

In Montana and nationally, Zephyr said, such bills “are arising out of ignorance, fear, but also out of hate.” 

“Whether that is bills targeting our access to lifesaving health care, whether it is classifying our existence as against the ‘purient interest’ and trying to ban children from interacting with us, or whether it is banning books about our existence under the guise of protecting children,” she said. “We see these bills coming in the Legislature, in our hearings, and on hold waiting in the wings.”

Zephyr and Howell sit on the House Judiciary Committee, which will likely debate SB 99 if it passes out of the Senate and any other bills that touch on LGBTQ rights. The committee’s minority vice chair, Rep. Laurie Bishop, D-Livingston, said their presence and perspective is a notable asset that the Legislature didn’t have last session. 

Another difference in strategy from 2021, LGBTQ advocates said, is a conscious effort to emphasize examples of transgender people thriving and finding happiness because of access to health care, affirming communities and other resources in Montana. Educating lawmakers and transgender representation  in the Capitol, they said, might give lawmakers a better picture of the community the bills would impact.

“The biggest determining factor about where someone stands on LGBTQ and specifically trans rights is if they know trans community members,” said Shawn Reagor, director of equality and economic justice at the Montana Human Rights Network. “And so we understand the deep value of creating those relationships for lawmakers who will be making decisions about these specific bills.”