Montana ‘bathroom bill’ passes committee on party lines

A bill that would require people to use only those bathrooms that align with their sex assigned at birth — including transgender people — passed the House Judiciary Committee on Monday along partisan lines.

House Bill 121 defines sex as either male or female, determined by a person’s biological or genetic makeup, and excludes the “subjective” experience of gender. It applies to all public facilities — including universities, government buildings, libraries, corrections facilities and more — as well as domestic violence shelters that receive state dollars.

“As a trans person, this bill would directly impact me,” said Rep. Zooey Zephyr, D-Missoula, during the Monday committee meeting. “I have been happily using the women’s restroom in this building throughout my tenure without issue.”

Billed as a safeguard for women and girls against sexual violence and harassment, HB 121 mirrors legislation, dubbed bathroom bills, passed in more than a dozen Republican-led states. Advocates say the measure further stigmatizes trans people, putting an already at-risk group even more squarely in harm’s way.

Rep. Kerri Seekins-Crowe, R-Billings, insisted at the committee hearing on Jan. 10 that the bill doesn’t target any single group, but rather protects all Montanans from harm.

When asked by Democratic committee members for examples of harassment or sexual violence against women in the types of spaces delineated in the legislation, Seekins-Crowe did not offer any specifics. She said it was a top issue she heard about from constituents while campaigning.

“This is not a bill I would have brought if it were not an issue,” Seekins-Crowe said.

Multiple entities that would be subject to the provisions of the bill, including a domestic violence shelter in Seekins-Crowe’s district, said they had not experienced any incidents of a trans person being violent against a fellow resident. A representative from the Associated Student of the University of Montana echoed that sentiment.

Democrats raised concerns about the far-reaching consequences of HB 121 on local governments and nonprofits as well as their employees that would be responsible for implementing its provisions.

The legislation requires facilities take “reasonable steps” to ensure that nobody “encounters” someone of the opposite sex — using the binary definition set forth in the bill — in a bathroom, shared sleeping area or other listed spaces.

It does not stipulate what those reasonable steps might be. HB 121 includes no mention of how to determine whether a person’s chromosomal makeup aligns with the definition of sex included in the bill.

However, the bill does allow anyone who believes they have encountered someone of the opposite sex in one of these private spaces to take legal action against the organization responsible for overseeing that bathroom, changing room or sleeping area. There’s a world in which that could mean a librarian in a city library, a teacher in a high school or social worker in a domestic violence shelter is responsible for policing who enters a bathroom or risk being sued, advocates warned.

“How do you otherwise ensure that nobody is going to ‘encounter’ somebody that they perceive to be in the wrong bathroom?,” said Rep. SJ Howell, D-Missoula. “You can’t.”

The Missoula lawmaker called the bill another step down the path of government intrusion into the private lives of everyday people, and noted that there are already laws in place to prosecute people who commit acts of harassment or sexual violence, regardless of their sex or where they do so.

“Nobody should have to produce a birth certificate to use the bathroom,” Howell said. “Nobody should have to take a blood test to use the bathroom. This is ridiculous. What we should do is hold people accountable for their behaviors. We can and should do that.”

Multiple Republicans on the committee suggested facilities make infrastructure changes such as adding locks or mandating single-use bathrooms to comply with the law. HB 121 provides no funding for these modifications.

A similar Montana bill died in committee in 2017, partly because of the financial toll it would have had on local governments responsible for making changes and defending themselves against likely lawsuits.

Rep. Jedediah Hinkle, R-Belgrade, conceded there could be some troubles with the specifics of implementation, but considered the legislation a valuable “deterrent” nevertheless.

The measure passed the House Judiciary Committee on Monday in a 12-8 vote and will next go to the House floor.

“When this vote comes to the House floor, moderate Republicans will have to decide whether they will vote against this blatantly discriminatory policy,” Zephyr told the Montana State News Bureau. “Or whether they will bow to anti-LGBTQ fear-mongering that has begun to take over their party.”