Montana 'bathroom bill' poised to pass House after preliminary vote

A bill that would prohibit transgender people from using restrooms that do not align with their sex assigned at birth is poised to pass the Montana House of Representatives.

Lawmakers cast preliminary votes along party lines on Wednesday to support the legislation that defines sex as binary. Sex, according to House Bill 121, is determined by a person’s “biological and genetic indication” at birth, regardless of “an individual's psychological, behavioral, social, chosen, or subjective experience of gender.”

“Sex is in every cell of our being,” said Rep. Amy Regier, R-Kalispell. “Chromosomes can’t be changed.”

The far-reaching proposal would require people to use restrooms, changing rooms, sleeping quarters and other multi-occupancy spaces that correspond with this definition of sex in all public facilities and some private ones, too.

Rep. Kerri Seekins-Crowe, R-Billings, the bill’s sponsor, insisted HB 121 is “not about exclusion." Rather, she said, it’s necessary to protect women and young girls from harassment or sexual violence at the hands of men.

“I know the critics will cry discrimination,” she said. “They always do. But let me tell you what discrimination looks like – forcing a young girl to share a vulnerable space with a biological male.”

HB 121 resembles legislation recently passed in more than a dozen other Republican-led states including Utah and Florida. The trend of "bathroom bills" being introduced across the country comes less than a decade after North Carolina’s 2016 law sparked widespread backlash that led to political calamity for its GOP majority.

LGBTQ+ advocates said during last week’s hearing in the House Judiciary Committee that the bill would further stigmatize trans people who are already more likely to be victims of violent crime and perpetuates dangerous stereotypes.

“I would ask that you leave trans people alone,” Rep. Zooey Zephyr, D-Missoula, told her colleagues on the floor Wednesday. “Let me be the woman I am happy to be. Let me live my life.”

Wednesday's House floor debate epitomized a rift that’s become familiar in the halls of the Montana State Capitol – whether laws that disproportionately impact trans people constitute discrimination or benignly uphold long-held and immutable norms.

“I think we’ve gotten a little sideways about what Montana values are,” said Rep. SJ Howell, D-Missoula. “Because Montana values, they aren’t complicated. They aren’t political. Montana values are simple. Love thy neighbor, mind thy business. This bill does neither.”

If enacted into law, HB 121 would require all public buildings and a number of private facilities — such as domestic violence shelters that receive state dollars — to comply, effective immediately, without any funding to do so.

Should these entities fail to take undefined “reasonable steps” to enforce the provisions, they are subject to legal action. Yet the bill fails to detail how to ensure the only people using a gendered bathroom are those whose chromosomes align with it. If someone "encounters" a person of the opposite sex in one of the spaces listed in HB 121, they have the right to sue the entity, which could include public employees like librarians, teachers or city bus drivers, among many others.

“It is appropriate for us to legislate harmful behavior,” Howell said. “It is not appropriate to legislate people existing.”

HB 121 is likely to move through the lower chamber despite concerns from representatives of local governments, public employees and shelter operators who have expressed fear the bill would open them up to excessive costs and unwinnable lawsuits.

Local governments would be forced to foot the bill for necessary renovations, such as putting locks on doors or building single occupancy stalls, they said, noting that the costs could be reflected in residents’ property tax bills.

Some House Republicans did share these concerns, but not enough to vote against it.

Rep. Brad Barker, R-Red Lodge, who said there had been a lot of “smoke and heat” around this issue, encouraged colleagues in the Senate to work with sponsor Seekins-Crowe to come up with possible remedies.

“I want to make sure that we can legally defend this, so that we can adequately protect women and children and make women feel comfortable,” Barker said.

Anticipation of Wednesday’s floor debate evoked memories of the 2023 legislative session, when Zephyr’s remarks against a bill to ban gender-affirming care for Montana youth rankled Republicans in the House. GOP leadership refused to recognize her on the floor, and their reaction sparked protests that shut down a House floor session and led to arrests. Zephyr was censured by House Republicans and banned from the floor.

That memory is fresh for some lawmakers. On Tuesday, the House voted along party lines to give the Speaker of the House new authority to expel or censure a member through a simple majority vote of the body following a breach of decorum.

House Minority Leader Katie Sullivan, D-Missoula, invoked the rules package during comments from two different Republicans during the HB 121 debate on Wednesday.

House lawmakers will vote on HB 121 on Thursday. Given the 58-42 result Wednesday, it appears likely the bill will move to the Senate for consideration.

“I am confident that the Montana Senate and Gov. Greg Gianforte will recognize the importance of this legislation and will move quickly to sign it into law,” House Speaker Brandon Ler, R-Savage, said in an emailed statement.