Lawmakers debate free speech, respect for transgender students

Update: House Bill 361 passed the House Thursday, Feb. 16, on a party-line 66-32 vote, with two Republican representatives excused. It now moves to the Senate.

Lawmakers in the Montana House engaged in pointed debate Wednesday about respect, faith and the ability of transgender, nonbinary and two-spirit students to feel safe in public schools.

The discussion centered on House Bill 361, a measure brought by Rep. Brandon Ler, R-Savage, to establish that referring to a fellow student by a gender they do not claim or a birth name they no longer use — known as misgendering and dead-naming, respectively — is not legally discriminatory behavior. In his opening remarks, Ler framed the proposal as a protection of the free speech rights of children who view gender as strictly binary, an argument that gradually took shape during the bill’s initial appearance in committee last week.

“What this bill is meant to do is to allow our children in education to have their own beliefs and not have somebody else’s beliefs forced on them,” Ler said.

Prior to its appearance on the House floor, HB 361 drew considerable opposition from educators and LGBTQ advocates who argued that it would undermine local school officials’ constitutional authority and result in increased bullying and harassment of transgender youth. The bill was amended to stipulate that schools can still discipline students whose behavior rises to the state’s definition of bullying. According to the Legislature’s latest report on public messaging for and against specific bills, HB 361 has generated 36 messages in support and 299 in opposition.

HB 361 passed its first House vote 66-34 Wednesday, with Republican Reps. John Fitzpatrick and Gregory Frazer opposing in concert with the full Democratic caucus. Prior to the vote, legislators on both sides of the aisle spent nearly an hour expressing their views. The first to rise was Rep. Zooey Zephyr, D-Missoula, who is transgender. She said that regardless of whether misgendering or dead-naming amounts to bullying, it still “causes harm to that individual.”

“To me, this is inherently discriminatory,” Zephyr said of HB 361. “It’s discriminatory because you’re setting up a policy where if you had a cisgender boy in school, this would not prohibit someone from calling them a girl over and over again, but if you had someone like me, a trans girl, it would allow for them to call me a boy. You’re setting up two distinct standards, which is on the basis of whether or not the student is transgender, and that is inherently discriminatory policy.”

Ten other House Democrats spoke against the bill, many claiming that it would negatively impact teachers’ ability to provide safe and affirming learning environments for their students. Rep. SJ Howell, D-Missoula, who is trans and nonbinary, argued that it’s “not our job as a Legislature” to tell local school officials how to teach students to treat each other with dignity and respect. Missoula Democratic Rep. Katie Sullivan raised questions regarding HB 361’s legality, noting that the U.S. Department of Education has determined that federal sex-based discrimination protections under Title IX include discrimination on the basis of gender identity.

Rep. Ed Stafman, D-Bozeman, offered a faith-based case for his opposition to the bill. He stated that in Judaism, disrespecting or embarrassing someone in public is “tantamount to wounding them or shedding their blood.” Passing HB 361, he said, would send a message to students that it’s OK to say whatever they want regardless of whether it hurts others.

“That’s wrong,” Stafman said. “It violates every religious tenet I have ever known.”

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Across the aisle, supporters of Ler’s proposal characterized the issue as a matter of personal conviction and free speech. Rep. Mike Hopkins, R-Missoula, argued that respecting other people is a choice, not an obligation, and said compelling students to behave a certain way is a “flagrant violation” of their First Amendment rights. He clarified that those rights don’t extend to bullying or physical violence, but maintained that “force does not beget kindness.” Other supporters claimed the bill would protect students who mistakenly misgender or dead-name transgender peers from inappropriate disciplinary action.

“We’ve heard a lot about bullying, we’ve heard a lot about safety, about respect,” Majority House Leader Sue Vinton, R-Billings, said. “But I’m thinking about that 10-year-old that’s on the playground and inadvertently calls a classmate by the wrong name or wrong gender. Shouldn’t that person feel safe, too? Shouldn’t they be protected?”

That stance was echoed by House Speaker Matt Regier, R-Kalispell, who stood to offer his own view of HB 361. Bullying is “awful,” he said, but so too is the prospect of a Montana student being disciplined for exercising “their First Amendment right of free speech” — a prospect he claimed the bill would protect against.

The intensity of the debate was foreshadowed Wednesday during a pre-floor session caucus meeting among House Republicans. Referring to the previous week’s committee hearing on the bill, Regier told the group that there had been “attempts to try and make it emotional.” He urged his fellow Republicans to “not make it personal and not take it personal.” If such attempts were made, he said, “don’t take the bait.” 

“Our voice is going to be heard today,” Regier said. “At the end of the day, the voters sent us here with a supermajority. We got the votes, they have a microphone.”

HB 361 was also discussed during a caucus meeting among House Democrats, with House Minority Leader Kim Abbott of Helena predicting a “tough debate.”

“Just want to make sure we’re taking care of ourselves and each other out there,” Abbott said. “We’ll pay attention to language that shouldn’t be on the floor, we’ll object to that and tell the story of our community.”

If HB 361 clears a second vote on the House floor, it will pass to the Senate for additional debate and action.