State attorneys defend trans bathroom bill in court

Attorneys for the state of Montana on Monday sought to ward off a long-term judicial block being placed on House Bill 121, a recently passed law that creates strict sex segregation of multi-user bathrooms, locker rooms and sleeping areas. 

The law, endorsed by Republican legislators and signed by Gov. Greg Gianforte, has been challenged by transgender and intersex plaintiffs who say it forces them to use public facilities that don’t match their gender identities or appearance. Attorneys representing the plaintiffs have argued that the law violates Montana’s constitutional protections for privacy, equal protection and dignity, and is an example of Republican state lawmakers crafting policies with an animus toward transgender people. 

The legislation, which took immediate effect, is one of several bills affecting transgender people that have passed along party lines this session in the Republican-controlled Legislature. While Democrats have strategized to undercut several bills with amendments aimed at lessening their impact, others have passed through both chambers without difficulty. 

During a Monday appearance in state district court in Missoula, Assistant Attorney General Thane Johnson reiterated supporters’ claims that HB 121 would protect women and girls by deterring transgender women or predatory men from entering certain spaces under the guise of being women. 

But Johnson also appeared to grapple with how the law squares with equal protection rights. He asked Judge Shane Vannatta to consider its application in specific contexts, such as juvenile detention facilities.

“I can’t say that it’s perfect. I can’t. But I think there are some parts to this bill that are worth protecting. And it’s protecting women and young girls in facilities where they have no choice, they have to be there,” Johnson said.

He urged Vannatta to allow the temporary restraining order currently in place to expire and for the law to take effect, arguing that it might push covered entities — such as public schools, university spaces and state and county buildings — to protect privacy by getting rid of multi-user restrooms entirely.

“Your honor, let’s see where it goes. Let’s see how the covered entities apply this,” Johnson said.

Vannatta observed that that strategy could create other issues. At a University of Montana football game, he described long lines already forming for multi-user bathrooms, a problem that could be worse if only one person could use the restroom at a time. Johnson responded by suggesting that facilities set up a multitude of portable toilets, as other universities have done at athletic events. 

“You see them in other stadiums, where they’ve gone to the porta-potties,” Johnson said. “It works.”

By the end of Monday’s hearing, Vannatta opted to extend the temporary restraining order until May 16, a period he said he’d use to evaluate both sides’ arguments before deciding whether to issue a preliminary injunction — a hold on the law that remains in place while the constitutional merits of the case are hashed out in court. 

Alex Rate, an attorney for the ACLU of Montana, one of the legal groups representing plaintiffs in the case, said he was “gratified” by the roughly month-long expansion of the restraining order. In a comment after the hearing, Rate told Montana Free Press he was not concerned that Vannatta opted against issuing an immediate ruling from the bench, a speedy response that Rate had explicitly requested during his Monday arguments.

“I think making sure that he’s taking the belt-and-suspenders approach is not surprising and certainly not cause for us to read the tea leaves,” Rate said.

In court filings and remarks during Monday’s hearing, Rate focused on convincing the judge that the plaintiffs in the case have standing to challenge HB 121, even though state and local governments are the entities that are liable under the bill language. 

The individuals challenging the lawsuit include Casey Perkins, a transgender woman who works at the Montana Department of Labor and Industry; Spencer McDonald, a transgender man who works as a legislative intern in the state Capitol building; and John Doe, an intersex person who frequents the public library and does not know whether the law classifies him as male or female.

“Let’s look at what would happen if House Bill 121 were to be implemented,” Rate said during oral arguments. “All covered entities would immediately take necessary steps to ensure that individuals using public facilities are using them according to their sex assigned at birth. That means trans women cannot use the women’s restroom. Trans men cannot use the men’s room. And if a trans woman does use the women’s bathroom, the covered entity is subject to civil liability. And if she uses the men’s restroom, then she is forced to publicly out herself and face the threat of harassment and violence.” 

Rate also argued that the law was not narrowly tailored to try to prevent harassment and sexual assault — many of those protections, Rate said, are already in place through criminal statutes that prohibit predatory and invasive conduct.

During his reply, Johnson acknowledged that he did not have any evidence of transgender people exhibiting assaultive or harassing behavior in the Montana spaces outlined in the bill. 

The state attorney sidestepped a hypothetical example posed by Vannatta about how Missoula County would handle a complaint from a woman who encounters a transgender man — categorized as a woman under the terms of HB 121 — in the women’s restroom. 

“Now we are actually having someone who outwardly presents as a man walking into a female bathroom and, arguably, forced to do so if House Bill 121 is enforced by a covered entity,” Vannatta posed. “It seems to me that we’ve got a problem.”

“You have given the toughest hypothetical, I think, that there is,” Johnson said. 

In asking for more time to craft a decision on a preliminary injunction, Vannatta acknowledged the possibility that his future ruling could be appealed to the Montana Supreme Court. 

“I would prefer to reduce it to writing so that the parties have a clearer record,” Vannatta said.