Montana
Montana Republicans support anti-Trans medical conscience bill
HB 303, which allows medical providers to decline services based on moral or religious beliefs, cleared a key House vote Monday
ByĀ Mara Silvers | HELENA – State lawmakers in the House of Representatives gave broad approval Monday to a bill that would allow medical providers, health care facilities and insurers to deny services based on āethical, moral, or religious beliefs or principles,ā signaling the billās likely advancement to the Senate this week.Ā
House Bill 303, sponsored by Rep. Amy Regier, R-Kalispell, passed the Republican-majority chamber largely along party lines, with 65 votes in favor and 35 against, after roughly 20 minutes of debate.
Regier portrayed the bill as a āpreservation and protection for medical conscienceā in the state for practitioners and health care institutions that object to specific ālifestyle and elective proceduresā such as physician aid in dying, prescribing marijuana or opioids, abortion procedures and gender-affirming medical care for transgender people.
āTo be clear, this bill would not give the right to refuse to serve a person. It would only apply to the narrow circumstances where a nurse or physician cannot conscientiously perform a specific procedure,ā Regier said.
A subsection of the bill says it is not meant to conflict with theĀ federal emergency health care access lawĀ known as EMTALA as it applies to health care institutions, such as hospitals. But the bill does not provide a holistic exemption for emergency departments and emergency health care providers. When it comes to abortion, for example, the bill would require providers to opt-in to participating in those procedures in writing beforehand.
Similar legislation has had recent success in other states. For instance, a Medical Ethics and Diversity Act was signed into law in South Carolina last spring. The legislation in that state saw support from the Alliance Defending Freedom, a conservative religious advocacy group that is also backing the Montana proposal.
The opposition to South Carolinaās legislation, including from transgender patients and LGBTQ advocacy groups, echoes concerns now surfacing in Montana over HB 303. Medical associations and groups, including the Montana Hospital Association, Montana Primary Care Association, Montana Nurses Association and the Montana Medical Association, testified against the bill during a January committee hearing, saying it would put patientsā care at risk.
During Mondayās debate on the House floor, Democrats reiterated that the bill includes no discrimination protection for patients, and does not guarantee that a patient has a right to access health care even if a specific provider declines to participate in those services.Ā
Rep. Zooey Zephyr, D-Missoula, told fellow lawmakers the bill would mean transgender people like herself could be turned away from medical services they need.
āWhat is actually going to happen is it will be a denial based on diagnosis. Something like, I am diagnosed with gender dysphoria,ā Zephyr said. āAnd the thing is, that is inherently discriminatory because you cannot pass my diagnosis from who I am. To deny me based on my diagnosis of gender dysphoria is to deny me based on my being a trans woman.ā
Republican moderates appeared to try and derail the bill by proposing a strategic amendment during Mondayās floor session.Ā
As written, HB 303 does not apply to a āhealth care institution or health care payer owned or operated by the state or a political subdivision of the state.ā Some Republican representatives showed interest in striking that provision from the bill, an amendment that would have triggered a higher threshold for the bill to pass because of a specific provision of the state constitution. That amendment, proposed by Rep. Tom Welch, R-Dillon, failed in a 39-61 vote.
Republicans who spoke in support of the bill on the floor said they hoped the bill would protect freedom of expression for medical providers, even those they disagree with.
āI think in this increasingly lack of traditional values and conscience world, and oftentimes profit-driven world, that protection needs to be provided for providers and health care workers that do have those values and do have that conscience,ā said Rep. Jerry Schilling, R-Circle.
Other Democrats who considered the bill as part of the House Judiciary Committee urged lawmakers to consider the unintended consequences of the bill. Rep. Laura Smith, D-Helena, said sheād heard stories from parents of young children faced with challenging medical circumstances who feared that, had HB 303 been in place, their desires for care would have been trumped by the prerogative or ideology of their providers.
āThis is just one of many examples that I receive where medical teams have tried to deny parentsā rights to choose procedures for their children,ā Smith said. āIf the bill passes, it will take away parental rights, and your constituentsā parental rights, to make these life-and-death procedural and medical decisions for our own children.ā
The bill ultimately passed with widespread Republican support and one affirmative vote from Rep. Frank Smith, D-Poplar. Four Republican lawmakers joined Democrats in opposition.
If the bill passes a third, non-debatable vote this week, it will then be transmitted to the Senate and assigned to a committee for a second hearing.
Speaking to Montana Free Press Monday afternoon, Regier said she was pleased by the vote margin.
āItās what we all hope for,ā she said.Ā
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Mara Silvers writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.
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The preceding pieceĀ was previously publishedĀ by Montana Free Press and is republished with permission.
SUPPORT A FREE AND INDEPENDENT PRESS
Unbiased, unflinching journalism is critical to our democracy. When you donate to Montana Free Press, you are helping build a newsroom that serves the people of Montana, not advertisers or special interests. (Link)
Montana
ACLU sues Montana over gender markers on driverās licenses
The Montana Department of Justice quietly adopted a new policy for changing gender markers on Montana driverās licenses
ByĀ Nicole GirtenĀ | HELENA, Mont. – The Montana Department of Justice quietly adopted a new policy for changing gender markers on Montana driverās licenses that would require transgender Montanans to provide an amended birth certificate, as opposed to only requiring a note from a doctor.
Thatās according to a class action lawsuit filed by the ACLU of Montana on Thursday, which is asking the court to declare the new Motor Vehicle Division policy unconstitutional. The lawsuit targets a rule enacted by the stateās health department in 2022 which plaintiffs claim bans transgender applicants from changing the sex marker on their birth certificate.
This lawsuit follows other legal challenges in recent years involving legislation and rules regarding changing gender markers on birth certificates in the Treasure State. A law passed during the 2021 legislature restricting changes to birth certificates was found unconstitutional and there are two other ongoing lawsuits surrounding a 2023 law defining sex as binary in statute.
Defendants listed in the lawsuit include Attorney General Austin Knudsen, the Montana DOJ, Gov. Greg Gianforte, the Department of Public Health and Human Services and DPHHS Director Charlie Brereton.
A spokesperson for Gov. Gianforte said Thursday the governor āstands by the bill he signed in 2023 that brings the long-recognized, commonsense, immutable biologically-based definition of sex ā male and female ā into our state laws.ā
āIt is no surprise the ACLU would wade into Montana to challenge commonsense, immutable biological facts to advance its far left agenda,ā the spokesperson said in an emailed statement.
A DPHHS spokesperson said the department does not generally comment on on-going litigation and a spokesperson for the DOJ did not respond to emailed questions in time for publication.
Plaintiffs include a former Montana resident and transgender woman, Jessica Kalarchik, who is looking to change the gender marker on her birth certificate, and Jane Doe, a transgender woman looking to change the gender marker on both her birth certificate and her driverās license.
Plaintiffs claim the 2022 rule, the 2023 law and the new DMV protocol go against protections in Montanaās constitution.
Plaintiff Doe avoids using public restrooms and changing rooms for fear of mistreatment or violence. Sheās already faced mistreatment from people in her life after coming out, according to the lawsuit.
Doe worries about showing her identification documents with her gender assigned at birth to someone who may react negatively.
āMs. Doe is typically perceived as female, so anytime she is forced to present an identity document that incorrectly identifies her as male, she is forced to āoutā herself as transgender,ā the lawsuit read. āAs Ms. Doeās appearance has shifted, her driverās license no longer matches her appearance, and she has experienced increasing issues with this disparity.ā
Kalarchik, 49, is a transgender woman and veteran who was born in Butte and currently lives in Anchorage, Alaska, with her wife, Renee. Sheās looking to have the gender marker amended on her birth certificate for similar fears of retaliation as Doe. The lawsuit said she has previously experienced incidents of harassment and discrimination in both her personal and professional life.
Kalarchik started hormone therapy in 2022 and has legally changed her name and sex marker on both her Alaska driverās license and her Social Security card.
The lawsuit said the 2022 rule and Senate Bill 458, which defines sex as binary and passed in 2023, prevent Kalarchik from changing the gender marker on her birth certificate.
DPHHS announced in February the department was reinstating the 2022 rule, which only allows changes to birth certificates in the event the gender marker was listed incorrectly as a result of a data entry error and does not authorize changes ābased on gender transition, gender identity, or change of gender.ā
āThe effect of the 2022 Rule is to categorically ban transgender applicants from obtaining birth-certificate amendments to reflect the sex they know themselves to be,ā the lawsuit said.
The rule was first enacted as the state was in ongoing litigation surrounding a similar law passed in 2021, Senate Bill 280, which restricted transgender Montanansā ability to amend the gender markers on their birth certificates.
The court temporarily blocked SB 280 in 2022, and the state needed to re-institute the previous process for changing birth certificates as litigation continued ā which only required an applicant to submit a supporting affidavit. But the state did not, and instead passed the 2022 rule. The court found the state in contempt for going against the preliminary injunction and also found SB 280 to be unconstitutional.
In February, DPHHS said the 2022 rule aligns with SB 458, the sex definition bill sponsored by Sen. Carl Glimm, R-Kila, who also sponsored SB 280. There are two open lawsuits against SB 458. Brereton said in the February announcement DPHHS āmust follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule.ā
Plaintiffs are claiming the 2022 Rule, the new MVD policy, and SB 458 (within the context of amending birth certificates and driverās licenses) are not constitutional. The lawsuit argues the policies violate protections in the Montana constitution for privacy, equal protection under the law, and against compelled speech.
The lawsuit says the policies are inherently discriminatory and require compelled speech in that in order to comply, transgender people have to āmisidentify themselves by a sex designation that does not accurately state their sex.ā
The filing said the āessential dangerā of these policies are they ārequire transgender Montanans to carry identity documents that are contrary to the sex they know themselves to beā and therefore increase risk of potential discrimination or violence.
Plaintiffs are asking to establish a class that would include all transgender people born in Montana who currently or in the future wish to change the gender marker on their birth certificate or driverās license.
Postscript
After publication, the Montana Department of Justice reached out to the Daily Montanan to say the Motor Vehicle Divisionās policy to change a sex marker has not changed.
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Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.
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The preceding pieceĀ was previously publishedĀ by the Daily Montanan and is republished with permission.
The Daily Montanan is a nonprofit, nonpartisan source for trusted news, commentary and insight into statewide policy and politics beneath the Big Sky.
Weāre part ofĀ States Newsroom, the nationās largest state-focused nonprofit news organization.
Montana
Montana returns to near ban on trans birth certificate changes
The agencyās announcement reignites a civil rights feud with transgender residents that was the subject of a prior lawsuit
ByĀ Mara Silvers | HELENA, Mont. The Montana state health department has announced its return to a near prohibition on individuals updating the sex on their birth certificates to match their gender identity, reigniting a civil rights feud with transgender residents that wasĀ the subject of a prior lawsuit.
In a Tuesday press release, the Gov. Greg Gianforte administrationās Department of Public Health and Human Services said the latest rule applies to any not-yet-adjudicated request to update the āmaleā or āfemaleā category on a birth certificate submitted or pending with the department on or after Oct. 1, 2023.
The rule now in effect was originally created by the department in 2022 as a way to restrict changes to birth certificates for transgender Montanans while the agency was involved in a court battle over a related Republican law from the prior legislative session.
The rule was ultimately blocked from taking effect because of the pending litigation in the Yellowstone County case brought by the ACLU of Montana. At that point in the litigation, the judge overseeing the case slammed the department for attempting to write new rules about birth certificates before the related lawsuit had been resolved, later holding the agency in contempt of court.
However, when the law at issue, Senate Bill 280, was permanently enjoined in June of last year, the state health department was no longer barred from creating administrative rules about how to handle changes to sex on birth certificates.
In the announcement Tuesday, the department outlined the narrow circumstances that would allow an individual to change the sex listed on their birth certificate under the current rule.
āThe 2022 final rule states the sex of a registrant on a birth certificate may only be corrected if the sex of an individual was listed incorrectly on the original certificate as a result of a scrivenerās error or a data entry error, or if the sex of the individual was misidentified on the original certificate,ā the state health department said. āIn both cases, the department must receive a correction affidavit and supporting documents consistent with the law.ā
The state health department said the rule, though years old, also complies with a law from the 2023 Legislature that seeks to create a strict definition of āsexā across state government. That law, Senate Bill 458, is sponsored by the same Republican lawmaker who brought the original bill to restrict birth certificates in 2021, Sen. Carl Glimm, R-Kila.
āDPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,ā said department director Charlie Brereton in a written statement. āThis notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.ā
While there have been legal challenges filed against SB 458 in recent months in state and federal court, the law has not been enjoined and is currently in effect.
Alex Rate, legal director of the ACLU of Montana, said the health departmentās latest action is grounds for a new lawsuit against the 2022 rule and the agencyās interpretation of SB 458.
āWeāll be back in court, no doubt,ā Rate told Montana Free Press Tuesday. āThe new rule runs afoul of the same constitutional provisions, from dignity to privacy to equal protection.ā
In explaining the grounds for a lawsuit, Rate said the rule implementation and SB 458ās effects more broadly signal the stateās prohibitive stance towards trans people.
āOnce again, this latest action by the [health department] betrays the stateās deep and abiding animus towards trans people in Montana,ā Rate said. āTrans people belong here. They are trying to live out their ordinary lives.ā
Rate said the organization aims to file its latest lawsuit in the coming weeks but did not provide a more precise timeline.Ā
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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.Ā
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The preceding pieceĀ was previously publishedĀ by Montana Free Press and is republished with permission.
SUPPORT A FREE AND INDEPENDENT PRESS
Unbiased, unflinching journalism is critical to our democracy. When you donate to Montana Free Press, you are helping build a newsroom that serves the people of Montana, not advertisers or special interests. (Link)
Montana
State judge blocks Montana anti-trans youth healthcare law
The attorney generalās office has not said whether it intends to appeal the preliminary injunction ruling to the Montana Supreme Court
ByĀ Mara Silvers | MISSOULA, MT. – A state district court judge in Missoula has blocked Montanaās ban on medical care for minors with gender dysphoria from taking effect while a lawsuit over its constitutionality continues, finding that the new law appears to have āno rational relationship to protecting children.ā
The challenge against Senate Bill 99, a Republican-backed law passed earlier this year and signed by Gov. Greg Gianforte in April, is taking place in the state court system. Other similar laws passed in other states, including Texas and Tennessee, are winding their way through federal courts. The Montana law was slated to take effect Oct. 1.
Advocates for transgender rights, the plaintiffs and their attorneys in the Montana case heralded Judge Jason Marksā Wednesday decision as critical protection for young people and vowed to continue fighting in court against what they deem discriminatory legislation.
āTodayās ruling permits our clients to breathe a sigh of relief,ā Akilah Deernose, the executive director of the ACLU of Montana, said in a Wednesday press release. The civil rights organization is one of the groupsĀ representing transgender minors, their parents and medical providers. āBut this fight is far from over. We look forward to vindicating our clientsā constitutional rights and ensuring that this hateful law never takes effect.ā
A spokesperson for Montana Attorney General Austin Knudsen did not respond to a request for comment before publication. Knudsenās office is representing defendants in the case, including himself, the governor, the state health department and agency director, and medical licensing boards.
The 48-page ruling comes a week afterĀ both sides appeared in Missoula courtĀ to argue over the preliminary injunction, which blocks the state from enforcing the law while litigation proceeds.Ā
There, the plaintiffs argued that SB 99 unconstitutionally violates Montanaās rights to equal protection, the right to parent, the right to privacy, the right to seek and obtain medical care, the right to dignity for patients and freedom of speech for medical providers. Defendants said the law should be enforced as written, asserting the stateās ācompelling interestā in protecting the well-being of children.
In his ruling, Marks found that the 2023 Legislatureās record ādoes not support a finding that SB 99 protects minors,ā writing that submitted evidence āsuggests that SB 99 would have the opposite effect.ā Marks also wrote that the plaintiffs were likely to eventually succeed on the merits of the case, one of the standards for temporarily blocking a law, and that SB 99 could be āunlikely to survive any level of constitutional review.ā
He described the medical treatments prohibited by SB 99 as among the options for young people experiencing gender dysphoria, a diagnosed condition caused by a distressing incongruence between a personās gender identity and the sex they were assigned at birth.
Nodding to the plaintiffsā arguments, Marks also noted that many of the medications āĀ including puberty blockers for adolescents and cross-sex hormones for teens ā are often prescribed to minors to treat other conditions but that SB 99 would bar the provision of the same services for the purpose of treating gender dysphoria.
Defendants advocated for a non-medical āwatchful-waitingā approach and suggested that many youths may eventually stop experiencing gender dysphoria without medical intervention, Marks summarized. He also noted that defendants sought to undermine professional medical organizationsā support for gender-affirming care, casting the science as unsettled.
Marks cut through the defendantsā framing of gender dysphoria as a psychological condition not suited for the medical treatments barred by SB 99. That logic, Marks explained, would put transgender minors on uneven footing with their peers.
āTransgender minors seeking the treatments proscribed by SB 99 do so forĀ medicalĀ reasons ā to treat gender dysphoria ā and based on the advice offered by their healthcare providers. Their cisgender counterparts also seek those treatments forĀ medicalĀ reasons ā such as central precocious puberty, hypogonadism, PCOS ā and on the advice of their healthcare providers. Physical conditions, like cysts on ovaries or ataxia, and psychological conditions, like depression or Alzheimerās disease, are all health issues that may require the aid of a medical professional,ā Marks wrote.Ā
The judge also said he was āunpersuadedā by the stateās argument that SB 99 does not discriminate based on sex, a protected class, āsimply because it proscribes both minor females and minor males from receiving gender-affirming care,ā citing the U.S. Supreme Court decision in landmark 2020 case Bostock v. Clayton County.
At another point in the ruling, Marks refuted arguments from the state framing gender-affirming medical care prohibited by SB 99 as āexperimentalā and unsafe, in part because they have not been approved by the federal Food and Drug Administration for the purpose of treating gender dysphoria. Marks pointed out that the treatments are approved to be used āoff-label,ā a common permission once the FDA approves a drug. The judge also referenced the Montana Legislatureās passage this year of Senate Bill 422, a law allowing any person to access treatment through an āinvestigational drugā as long as theyāve considered what has been approved by the FDA and received a recommendation from their health care provider.
āThe Court finds it fascinating that SB 99 and SB 422 were passed in the same legislative session,ā Marks wrote. āā¦ Read together, SB 99 and SB 422 authorize parents to give consent for their minor children to engage in experimental medical treatments, regardless of efficacy or risk, that cannot be blocked by the StateĀ unlessĀ the minor is transgender and seeking medical treatment for gender dysphoria in line with the recognized standard of care.ā
Marks continued that, based on that reading, āthe court is forced to conclude that the purported purpose given for SB 99 is disingenuous,ā and that the legislative record āis replete with animus toward transgender persons, mischaracterizations of the treatments proscribed by SB 99, and statements from individual legislators suggesting personal, moral, or religious disapproval of gender transition.ā He cited examples from Sen. Theresa Manzella, R-Hamilton, and the sponsor of the bill, Sen. John Fuller, R-Whitefish.
If the law were to take effect, Marks wrote, minors in Montana diagnosed with gender dysphoria would be at risk of facing āsevere psychological distressā if they were blocked from receiving prescribed medical care, including youth plaintiffs Scarlet van Garderen, 17, and Phoebe Cross, 16. The possibility of risks to the plaintiffās health, Marks wrote, constitutes āa high likelihood of irreparable harm.ā
The judge wrote that the findings in Wednesdayās ruling āare not binding at trial,ā and that a later trial āwill be the appropriate time to fully evaluate the merits of the competing evidence presented in this case.ā
The attorney generalās office has not said whether it intends to appeal the preliminary injunction ruling to the Montana Supreme Court.
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Mara Silvers
Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016. More by Mara Silvers
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The preceding pieceĀ was previously publishedĀ by Montana Free Press and is republished with permission.
SUPPORT A FREE AND INDEPENDENT PRESS
Unbiased, unflinching journalism is critical to our democracy. When you donate to Montana Free Press, you are helping build a newsroom that serves the people of Montana, not advertisers or special interests. (Link)
Montana
Montana bans drag queen stories in libraries, restricts public shows
Law is likely to face legal challenge, also prohibits āsexually orientedā performance at any public space where minors are present
ByĀ Arren Kimbel-Sannit | HELENA – Montana Gov. Greg Gianforte signed legislation this week that bans drag story hours in public schools and libraries and restricts āsexually oriented performancesā on public property, likely setting the stage for another legal challenge to GOP-backed legislation restricting LGBTQ+ expression.Ā
House Bill 359, sponsored byĀ Rep. Braxton Mitchell, R-Columbia Falls, became law with Gianforteās signature Monday.Ā
āThe governor believes itās wildly inappropriate for little kids, especially preschoolers and kids in elementary school, to be exposed to highly sexualized content,ā Kaitlin Price, a spokesperson for Gianforte, told Montana Free Press in an email Tuesday.
That line echoes arguments lawmakers made for the bill and others like it during the recently concluded session ā Mitchell suggested that drag story hours and other family-oriented drag performances were part of a āsick agendaā and ādamaging to a childās psychology and general welfare.ā Mitchell could not be reached for comment in time for publication Tuesday.
Drag performers, advocates and other opponents said the billās backers willfully misunderstand the nature of drag performances at a time when the LGBTQ+ community is already under attack by state legislators. In addition to HB 359, Republicans this session passed Senate Bill 99, which bans gender-affirming care for transgender youth, Senate Bill 458, which inserts binary definitions of sex into state law, and several other similar bills.
āWe have white [cisgender] individuals that have zero experience within the drag community providing a legally binding definition of what drag art is, and I think I speak for the community when I say that is hurtful, degrading, and itās a misunderstanding,ā said Bozeman drag performer Anita Shadow.
āOne of the big things is that there seems to be a complete misunderstanding that drag is inherently sexual ā and that is not the case,ā Shadow said.
Upper Seven Law, a non-profit law firm involved in several lawsuits related to new legislation, has pledged to challenge HB 359.Ā
āThis is a really straightforward First Amendment activity,ā Rylee Sommers-Flanagan, the firmās executive director, told MTFP. āThereās nothing obscene about dressing in drag. The First Amendment allows reasonable restrictions on speech, but this isnāt it.ā
Similar drag bills in other states have also faced lawsuits, but supporters of HB 359 maintain that the billās focus on publicly funded facilities sets it apart from legislation elsewhere.
The version of the law that reached Gianforteās desk is less explicit about the types of expression itās targeting than it was at its introduction. Initially, HB 359 specifically banned drag performances in public schools, libraries and public properties āin any locationā when a minor is present, but underwent a series of amendments during the final days of the session that broadened its focus.
These amendments included new language from Sen. Chris Friedel, R-Billings, that removed any reference to drag in favor of the term āadult-oriented.ā
āI can tell you right now, if that bill goes [in its current form] even the most conservative judge will strike it down for unconstitutionality,ā Friedel told his colleagues in April. āThe reason I brought this amendment today is to make sure that we get this across the aisle, we get this in front of the governor, he signs it, it goes to court and it can be defended by the [Montana attorney generalās] office.ā
Friedelās amendment passed the Senate on bipartisan lines. But the vote to support the amendment in the House came just after protests in support ofĀ Rep. Zooey Zephyr, a transgender woman and Missoula Democrat,Ā erupted in the House gallery. Despite relatively broad GOP support for the amendment in the Senate, almost every House Republican voted against the new language.Ā
A subcommittee of House and Senate lawmakers then met to reconcile the different versions. The language they landed on has a few operative provisions, namely an explicit ban on drag story hours at āa school or library that receives any form of funding from the stateā during regular operating hours or at school-sanctioned events. The bill ultimately passed on May 2, the last day of the 68th Legislature, on mostly party lines.
To support those restrictions, the law introduces definitions of drag queen and drag king into state statute. Critics have attacked those definitions as vague and subjective.
A drag queen, under the law, is āa male or female performer who adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.ā
The law also says that āa sexually oriented business may not allow a person under 18 years of age to enter the premises of the business during a sexually oriented performanceā and further prohibits a āsexually oriented activityā in any public space where someone under the age of 18 is present.
Shadow, the drag performer, described story hours as akin to ātaking your kid to meet Cinderella at Disneyland,ā not an expression of prurience. Performers in Shadowās organization follow strict requirements for dress and language when performing for kids, she said.
āIf you have a caterer that is working with an older crowd that has lots of money, they may bring caviar,ā Shadow said. āIf youāre working with a youth group for a birthday party, theyāre probably bringing pizza. Theyāre catering to the crowd theyāre going to.ā
Gianforteās signing of the bill comes as Pride Month approaches in June. Kevin Hamm, the president of Montana Pride ā and a recently announced Democratic candidate for Montanaās eastern U.S. House district ā said he doesnāt expect the law will hamper the festivities.Ā
āWe have tons of events planned, many featuring drag,ā Hamm said. āKnowing how resilient and energized this community is in the face of adversity, I suspect that this nonsense will inspire even more people to show up as their authentic selves in drag or genderqueer outfits. Our community refuses to be pushed back into the closet by a small minority of ignorant but very vocal bigots, and this bill does nothing to change that.ā
Shadow, who helped produce Bozemanās own Pride event last week, said much of the same, but also noted the fear that many in the drag and LGBTQ+ community feel in the context of HB 359 and similar legislation. For example, white supremacist protesters interrupted a Pride event in Bozeman this weekend holding signs that said, among other phrases, āBoycott your local safe space.ā Events sheās involved with often require security, law enforcement and other heightened measures to prevent violence and harassment, Shadow said.
āNationally speaking but also in Montana, the queer community is under attack,ā she said.
Disclosure: Kevin Hamm is COO of Treasure State Internet, an in-kind supporter of Montana Free Press.
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Arren Kimbel-Sannit
Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.Ā
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The preceding pieceĀ was previously publishedĀ by Montana Free Press and is republished with permission.
Montana
Bozeman Pride marred by white supremacy, anti-LGBTQ+ groups
LGBTQ+ attendees in the Pride crowd commenced shouting “we’re here, we’re queer” over the white supremacists racist/homophobic chants
BOZEMAN, Mont. –Ā Pride returned to Bozeman after a 10 year absence although the featured Pride Stroll event was also attended by protesters wearing masks and sunglasses to protect their identities while chanting and carrying signs promoting white supremacy and condemning the LGBTQ+ community.
Pride Co-Producer Stefan Aldava told ABC Fox Bozeman KFBB-TV, that the events had been organized throughĀ TheĀ Countship of the Imperial Sovereign Court of the State of Montana, a nonprofit that organizes LGBTQ+ events, and that many local businesses and organizations were eager to step up to host or sponsor events.
About an hour into the event, as community organizations gathered at Soroptimist Park, a group of about 20 white supremacists showed up and started chanting hateful, anti-LGBTQ+ statements at the crowd. Many of them had their faces covered and held signs with racist and homophobic slogans, the Bozeman Daily ChronicleĀ reported.
Chronicle reporter Nora Shelly noted in a tweet: “Pride crowd shouting “we’re here, we’re queer” over the white supremacists.”
Pride crowd shouting "we're here, we're queer" over the white supremacists pic.twitter.com/HMmak9NmP2
— Nora Shelly (@noracshelly) May 20, 2023
State Representative Zooey Zephyr, (D-Missoula) who is an Out trans Montana lawmaker wrote: “We will not be intimidated by hatred here in Montana. Pride is our sanctuary. Pride is our protest. Pride is our continuous source of joy. And we will not let hatred take that joy away. We will dance, sing, and celebrate in defiance of the hatred that demands our silence.”
We will not be intimidated by hatred here in Montana.
— Rep. Zooey Zephyr (@ZoAndBehold) May 20, 2023
Pride is our sanctuary. Pride is our protest. Pride is our continuous source of joy. And we will not let hatred take that joy away.
We will dance, sing, and celebrate in defiance of the hatred that demands our silence. https://t.co/Cn3rf7HzvW
ABC Fox Bozeman KFBB-TV also reported:
The group walked up and down Main Street and other side streets while engaging with bystanders who shouted back at them.
One bystander who engaged, Joseph Wood, ended up getting assaulted.
Wood said he was walking near the group when one protester handed him a flyer. He continued walking near them and another protester tried blocking his path.
They ultimately got into a verbal altercation that escalated into the man hitting Wood in the face with a shield, then another man pepper sprayed him.
āHe didn’t like that. So, he checked me with the shield, and then they, like, reached around and this dude, this dude with, like, he literally, like, hand comes from here point blank in my left eye. Like, the most painful part was that I could feel it, like in going into the eye, not just like spicy on top,ā Wood said.
KFBB also noted that the white supremacist anti-LGBTQ+ protestors left almost immediately after the pepper spray was deployed and as Bozeman Police and fire department personnel arrived to take care of Wood.Ā
He made a statement to the police then spent time in an ambulance getting his eyes and face flushed with saline solution.
Montana
Montana’s GOP Governor Gianforte signs TikTok ban
The Chinese-owned social media platform will be illegal in Montana starting Jan. 1, 2024, barring a successful court challenge
HELENA – Gov. Greg Gianforte announced Wednesday that he had signed a bill banning Chinese-owned social media platform TikTok over concerns its data-sharing practices jeopardize user privacy and national security.
The ban, which the governorās office said was the first of its kind in the nation, is set to take effect Jan. 1, 2024, unless it is blocked in court.
āThe Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented,ā Gianforte said in a statement. āToday, Montana takes the most decisive action of any state to protect Montanansā private data and sensitive personal information from being harvested by the Chinese Communist Party.ā
The company, owned by ByteDance, and the American Civil Liberties Union have said they intend to challenge the law,Ā Senate Bill 419, as a violation of constitutionally protected free speech.
āWith this ban, Governor Gianforte and the Montana legislature have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment,ā ACLU of Montana Policy Director Keegan Medrano said in a statement.
A TikTok representative also criticized the law in a statement Wednesday.
āGovernor Gianforte has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state,ā said TikTok spokesperson Brooke Oberwetter. āWe want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana.ā
The law will bar ByteDance from allowing āthe operation of tiktok by the company or usersā inside Montanaās āterritorial jurisdictionā as long as the platform is owned by a company based in China or another country designated a āforeign adversaryā by the federal government.
The law will also make it illegal for companies like Apple and Google to let their users download the platformās app from their respective app stores. It does not include provisions that would allow the state to prosecute individual Montanans for circumventing the ban.
The law will be enforced by the Montana Department of Justice, which has the power to levy fines of up to $10,000 a day for violations.
Gianforte, a Republican, had previously signaled he would sign the bill in an email exchange where his office suggested amendments that would have expanded the billās scope to to apply to all social media platforms that allow usersā personal data to be provided to nations the federal government designates as āforeign adversaries.ā Those revisions were nearly identical to an amendment brought by Democrats while the bill was debated on the House floor, where they were resisted by Republican supporters of the ban who argued the changes would make the bill āunworkable.ā
The governor also issued a memo Wednesday directing state agencies to ban the use of other China- and Russia-based social media apps on state devices and networks. That ban, effective June 1, will cover ByteDance apps CapCut and Lemon8 in addition to TikTok, as well as Tencentās WeChat, Pinduoduoās Temu and Russia-based Telegram Messenger.
āOne of governmentās chief responsibilities is to keep its citizens ā and their personal, private, sensitive information and data ā safe and secure,ā Gianforte wrote in that memo. āForeign adversariesā collection and use of Montanansā personal information and data from social media applications infringe on Montanansā constitutionally guaranteed individual right to privacy.ā
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Eric Dietrich, Deputy Editor
Eric came to journalism in a roundabout way after studying engineering at Montana State University in Bozeman (credit, or blame, for his career direction rests with the campus’s student newspaper, the Exponent). He has worked as a professional journalist in Montana since 2013, with stints at the Great Falls Tribune, Bozeman Daily Chronicle, and Solutions Journalism Network before joining the Montana Free Press newsroom in Helena full time in 2019.Ā
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The preceding pieceĀ was previously publishedĀ by Montana Free Press and is republished with permission.
Montana
ACLU & legal groups sue Montana over trans youth healthcare ban
Montana health care providers and families challenge law banning Gender-Affirming care for transgender youth
HELENA ā Transgender youth, their families, and their medical providers are challenging a sweeping new Montana law SB 99 banning transgender youth from accessing age-appropriate gender-affirming health care in court.
In a lawsuit filed by the American Civil Liberties Union, the ACLU of Montana, Lambda Legal, and Perkins Coie, two families with transgender youth and two medical providers who work with transgender youth are challenging SB 99, signed by Governor Gianforte in April 2023, which bans the only evidence-based care for gender dysphoria for transgender people under 18. The plaintiffs charge the law with violating their rights under the Montana Constitution, including the right to equal protection and the right of parents to direct the upbringing of their children.
Plaintiffs include Jessica and Ewout van Garderen and their 16-year-old transgender daughter Scarlet, Molly and Paul Cross and their 15-year-old transgender son Phoebe, Dr. Juanita Hodax of Community Medical Center, and Dr. Katy Mistretta of Bozeman Creek Family Health.
“It is mentally and physically painful to feel like you are trapped in the wrong body,ā saidĀ Jessica van Garderen, mother of a transgender daughter. āGoing through puberty for the wrong sex is like having your body betray you on a daily basis. The only treatment we have found to be effective and give our daughter hope again is hormone therapy. The difference we have experienced is night and day and there is no going back. Taking away this crucial medical care is inhumane and a violation of our rights. We will fight this law for our daughter and every other family whose rights are being trampled.”
āI will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,ā saidĀ Phoebe Cross, a 15-year-old transgender boy. āJust living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away. There were many things I hoped my elected officials would achieve, this regression in human rights is not one of those things. The blatant disrespect for my humanity and existence is deeply unsettling.ā
āSB 99 is a cruel broadside against the rights of transgender youth, their families, and their medical providers,ā saidĀ Malita Picasso, Staff Attorney for the ACLUās LGBTQ & HIV Project. āPoliticians have no right to put themselves between patients and their doctors, and this law threatens the future of thousands of trans youth across the state. Weāre confident this law will fall apart completely under the scrutiny of the court and we welcome this opportunity to defend trans youth and their families from this dangerous political attack.ā
āWeāve entered a new era of competitive cruelty where politicians are trying to outdo one another in discrimination, as illustrated by the governorās initial veto of the ban because it just wasnāt vicious enough,ā saidĀ Lambda Legal Senior Counsel Peter Renn. āThis law represents government overreach on steroids.Ā The families targeted here have worked closely and carefully with qualified healthcare professionals to access the care they need.Ā It is reprehensible that politicians would barge into exam rooms to rip away life-saving treatment, in total defiance of science and medicine, after parents have finally found stability and hope for their childrenās future.āĀ
The American Medical Association, the American Psychological Association, and the American Academy of Pediatrics oppose laws like SB 99. Similar restrictions on gender-affirming care have been enjoined in federal court in Alabama and Arkansas and are being challenged in federal court in Oklahoma and Tennessee. A state court in Missouri has stayed an effort by the Missouri attorney general to bar all gender-affirming care ā for adolescents and adults ā in that state.
Montana
Montana Rep. Zooey Zephry asks journalist girlfriend to marry
State transgender lawmaker proposes to girlfriend: āShe has made me the luckiest woman aliveā her girlfriend notes saying yes
MISSOULA – During the second annual Queer Prom held Friday evening, May 5, at the Missoula County Fairgrounds, Democratic state Representative Zooey Zephyr surprised her girlfriend, journalist Erin Reed, by dropping to one knee and asking for her hand in marriage. The answer was an emphatic yes.
In a tweet Reed wrote: “At Queer Prom tonight, Zooey dropped to one knee and asked me to spend forever with her. I said yes. I can think of no better person in this world to stand side by side with. She has made me the luckiest woman alive.” This was followed by a tweet on Saturday where she wrote: “We are so extremely happy. I woke up this morning with her at my side and I know that no matter what, we’ve got each other.”
Reed, who is trans and writes extensively on transgender issues and politics for several outlets including the Los Angeles Blade, has covered a legislative season that has seen 17 states implement bans on gender-affirming care for trans kids and in two other instances, a ban for all ages gender-affirming care.
Reed’s fiancĆ©e was barred from speaking on the floor of the Montana House after Republicans, angered over her speaking out during debates on several anti-LGBTQ+ legislation including a bill that later passed barring trans youth from gender-affirming healthcare, banned her from the House Clamber.
The punitive action taken by House Republicans resulted in a massive show of support for the Missoula Democrat across all of the state beyond her home Missoula District 100 that she was elected to represent.
We are so extremely happy. I woke up this morning with her at my side and I know that no matter what, we've got each other.
— Erin Reed (@ErinInTheMorn) May 6, 2023
Credit for the picture goes to David Clumpner photography!
Montana
Judge denies motion to block enforcement of Rep. Zephyr censure
“Plaintiffsā requested relief would require this Court to interfere with legislative authority in a manner that exceeds its authority”
By Mara Silvers | HELENA – A Helena district court judge on Tuesday denied Rep. Zooey Zephyrās motion to temporarily block enforcement of House Republicansā discipline against her āĀ a punishment last week that banished her from the House chamber and barred her from debating legislation on the floor. The Missoula Democrat can still vote remotely and has been doing so from aĀ makeshift workspace roughly 20 feet down the hall from the chamber.
The ACLU of Montana and two private law firmsĀ filed suitĀ Friday on behalf of Zephyr and four of her constituents, claiming the actions of House SpeakerĀ Matt Regier, R-Kalispell, and House Sergeant at Arms Brad Murfitt violate their constitutional rights to free speech and equal protection under the law.Ā
The sanction came after Zephyr made comments on the House floor againstĀ Senate Bill 99, a ban on gender-affirming medical care for transgender minors. She said that lawmakers who voted in favor of the bill would see blood on their hands, a reference to the increased risks of suicide for young people without access to medical treatments for gender dysphoria.Ā
Regier subsequently refused to recognize Zephyr on the House floor for multiple days, saying he was acting to uphold decorum in the chamber. Last Monday,Ā Zephyrās constituents and supporters protestedĀ from the House gallery when she was again ignored, leading toĀ police, including some with face shields and batons, clearing the gallery and arresting seven protesters. Throughout the action, Zephyr remained standing by her seat, holding her microphone in the air, a display House Republicans later said encouraged protesters. The House voted to bar Zephyr from the House floor two days later in a party-line vote, 68-32.
Zephyrās lawsuit asked that the discipline against her be unenforced for the remainder of the session and that she be allowed to speak on the House floor, an immediate remedy for what the lawsuit alleged was an irreparable harm.Ā
District Court Judge Mike Menahan, a former Democratic lawmaker, panned the requested solutions in his Friday ruling, saying the plaintiffs were unlikely to succeed on the merits of their case and that the suggested intervention would be a breach of the separations of powers.
āPlaintiffsā requested relief would require this Court to interfere with legislative authority in a manner that exceeds this Courtās authority. Plaintiffs also seek injunctive relief which far outpaces the facts at issue here,ā Menahan wrote.
āEven if the Court ultimately finds the House of Representatives, Speaker Regier, and Sergeant at Arms Murfitt acted unlawfully under the facts of this case, it does not have the authority to issue a broad permanent injunction to effectively remove all legislative authority under Article V Section 10 [of the Montana Constitution] in relation to a single member,ā the judge continued.
Regier celebrated the ruling in a statement issued through a spokesperson late Tuesday.
āThe Montana courts have recognized that the Judicial Branch has no power to revise or overrule the power expressly held by the Montana State Legislature to conduct its business. The House is continuing its work for the people of Montana,ā Regier said.
Zephyr slammed the ruling in a statement posted to Twitter Friday night, promising to continue fighting to represent her constituents.
āThe courtās decision not to reinstate me undermines the democratic principles our country was founded on,ā she wrote. āI vow to continue standing for my constituents & community to fight for our democratic institutions. If we canāt get justice in the courts, we will get it in the ballot box.ā
The court's decision not to reinstate me undermines the democratic principles our country was founded on.
— Rep. Zooey Zephyr (@ZoAndBehold) May 2, 2023
I vow to continue standing for my constituents & community to fight for our democratic institutions. If we can't get justice in the courts, we will get it in the ballot box. pic.twitter.com/cBgXOnIX8K
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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.Ā**********************
The preceding pieceĀ was previously publishedĀ by Montana Free Press and is republished with permission.
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ACLU & silenced trans lawmaker sues Montana House leadership
āRep. Zephyr was elected by the people of her district after running on the very principles she is now being punished for defendingā
HELENA ā The American Civil Liberties Union of Montana. the law partners of Beck, Amsden, and Stalpes, and Mike Black, Esq.Ā filed a lawsuitĀ in state court today challenging the censure of State Representative Zooey Zephyr (HD 100).
The lawsuit alleges that recent actions undertaken by House leadership to silence Zephyr are a violation of her own First Amendment rights and the rights of her 11,000 constituents to representation in their state government.
āThis effort by House leadership to silence me and my constituents is a disturbing and terrifying affront to democracy itself,ā saidĀ Zephyr.Ā āHouse leadership explicitly and directly targeted me and my district because I dared to give voice to the values and needs of transgender people like myself. By doing so, theyāve denied me my own rights under the Constitution and, more importantly, the rights of my constituents to just representation in their own government. The Montana State House is the peopleās House, not Speaker Regierās, and Iām determined to defend the right of the people to have their voices heard.ā
āSuicide amongst transgender youth is not imaginary,ā saidĀ Anna Wong, a resident of Montana House District 100Ā and a named party in the suit. āIt is not a game and it is not a political foil. It is real. It is heartbreaking. And it is the responsibility of my representative to speak out against bills promoting it. I expected Representative Zephyr to oppose, and her comments leading to expulsion from the House floor, which I have listened to, seem incredibly measured and muted compared to the severity of the situation.ā
āRepresentative Zephyr was elected by the people of her district after running on the very principles she is now being punished for defending,ā saidĀ Alex Rate, legal director of the ACLU of Montana. āIn his craven pursuit to deny transgender youth and their families the health care they need, Speaker Regier has unfairly, unjustly, and unconstitutionally silenced those voters by silencing their representative. His actions are a direct threat to the bedrock principles that uphold our entire democracy, and we welcome the privilege of defending the people of Montanaās 100th House District from this desperate and autocratic effort to silence them.ā
Between April 20 and April 24, 2023, Ā House leadership repeatedly refused to recognize Rep. Zephyr, the stateās only openly transgender lawmaker, in all official proceedings. Following April 24 protests from Rep. Zephyrās constituents who demanded she be allowed to speak, House Speaker RegierĀ voted to formally censureĀ Zephyr on April 26, physically excluding her from the grounds of the State Capitol and denying her the right to engage in debate on important matters of public policy. The censure effectively denies her constituents adequate representation in their own state government.
When Rep. Zephyr showed up to work at the state capitol on April 27, she was told she could not enter the House chamber. In addition, since the censure, four study bills awaiting votes in the committees on which Zephyr sits were either transferred to a different committee or elevated to the house floor, effectively eliminating all public committee hearings in which she was scheduled to participate.
The censure unfairly and unconstitutionally targeted Zephyr for voicing her objection to SB 99, a ban on the rights of transgender youth and their families to access gender-affirming health care since signed into law by Republican Gov. Greg Gianforte on April 28.
The ACLU, the ACLU of Montana, and Lambda Legal haveĀ promised to challengeĀ SB 99 in court.
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