This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.
As Montana’s 68th Legislature grinds on, LGBTQ+ advocates are assessing what is yet to come. With bills to ban gender-affirming medical care for transgender minors, prohibit drag shows in public places, and define “sex” in state law based on reproductive characteristics still advancing toward the governor’s desk, civil rights groups are preparing for lawsuit season.
After Senate Bill 99, the gender-affirming care ban, passed the House March 24, the ACLU of Montana and the national LGBTQ rights group Lambda Legal were the first to announce their intent to sue if the bill becomes law.
“Gender-affirming care is a critical part of helping transgender adolescents succeed in school, establish healthy relationships with their friends and family, live authentically as themselves, and dream about their futures,” the press release said. “If this bill is signed into law, we will defend the rights of transgender youth in court, just as we have done in other states engaging in this anti-science and discriminatory fear-mongering.”
The bill’s sponsor, Sen. John Fuller, R-Kalispell, took issue during a Friday phone interview with the suggestion that his legislation is discriminatory. He argued that the bill, which is en route to Republican Gov. Greg Gianforte’s desk, is meant to apply to all children while being narrowly tailored to specific procedures and treatments.
“I recognize that hyperbole is the coinage of this game known as politics, but I take exception to the [suggestion] that I’m trying to harm a particular group of people,” Fuller said. “I’m not. I’m trying to protect children.”
Another proposal, Senate Bill 458, has also caught the attention of national legal experts. In a Monday press conference, lawyers and representatives from the Human Rights Campaign and the American Civil Liberties Union said the law to rigidly define “sex” in state code “could be easily challenged” for violating transgender peoples’ federal constitutional rights to equal protection and due process.
“It’s such a core interference with decisions that people have every right to make for themselves and in consultation with their own families and medical professionals,” said Paul Smith, professor at Georgetown Law and counsel to plaintiffs in the landmark gay rights case Lawrence v. Texas. The advancement of SB 458, he said, makes it seem as if the state is “simply refusing to accept the concept that transgender individuals really exist.”
HRC and the ACLU have not promised to sue over SB 458 — the bill has yet to be heard in the House and could still fail to gain approval from the majority of lawmakers. One potential motivation for shelving the proposal this session is a recent legal analysis by nonpartisan legislative staff finding that the bill could put up to $7.5 billion of Montana’s federal funding at risk, depending on how state agencies implement the bill.
If the Legislature’s 90-day process of policy making is a sprint, the litigation that could follow might be an ultramarathon. Legal fights over Republican-backed laws in 2021 — including abortion restrictions and a bill that makes it harder for trans people to change the sex on their birth certificate — have kept attorneys (not to mention journalists) busy for well over a year.
The sponsor of SB 458, Sen. Carl Glimm, R-Kila, has not responded to a message Friday seeking comment about the potential for a future lawsuit.
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