At The Montana Legislature, The Stakes Are High For Trans People
Montana lawmakers are carrying a handful of bills that would impact transgender people, adding to the record number of proposals seen across the country this year to restrict trans kids from playing in school sports and accessing gender-affirming health care. Several of those policies are nearing Gov. Greg Gianforte’s desk.
If Adrian Jawort was living among her Northern Cheyenne ancestors instead of modern-day Billings, she says her identity wouldn't be questioned.
"That was something that was accepted in my tribe, was people like me."
Jawort is "two-spirit," a term used in Native American cultures to describe a third, fluid, male-and-female gender that’s now included under the umbrella of LGBTQ.
According to the Indian Health Service, most Indigenous communities have terms in their own languages for gender variant members of their societies. Two-spirit people often served in their tribes as prominent artists, healers, hunters and warriors.
But, IHS says when white Europeans colonized Indigenous lands, they brought with them condemnation for two-spirit Native Americans and people who identify as transgender.
Jawort says the arguments playing out in Montana over trans rights aren’t surprising.
"We always see people say, 'Montana, we’re better than this.' And then we just stare at that statement when we read it in disbelief. Especially if you're LGBTQ or a Native person, because you’re just like 'no, you have just haven’t seen this side of Montana.'"
According to NPR, Montana is one of 20 states where Republican-controlled legislatures are advancing policies that would restrict access to health care for trans youth. It’s also one of several states considering bans on trans women competing in women's sports.
Four bills in Montana are advancing mostly along party lines, with most Republicans voting in favor of the proposals and Democrats voting against them.
Sen. Carl Glimm, a Republican from Kila, is carrying a bill to strengthen legal protections for religious beliefs, which some say will lead to discrimination of LGBTQ people. That bill has passed both chambers and is headed to the governor’s desk.
He’s carrying another bill that would require that people have gender-affirming surgery before amending their birth certificate.
"That’s all vital statistics, those are all things that are just facts, and they should be recorded and they should stay the same," Glimm said. "We shouldn’t be able to change them without significant reason."
Jeff Laszloffy, president of the socially-conservative Montana Family Foundation, spoke in support of the bill.
"The word sex actually means something. It's binary, either male or female, and it’s encoded in our DNA. The term gender, which the Legislature has refused to codify over the years, means nothing."
Opponents of the bill say it’s a punitive measure.
Kathryn Lowe, a pediatrician in Bozeman, spoke against the bill on behalf of the Montana Chapter of the American Academy of Pediatrics. She said trans youth, in most cases, are not prescribed gender-affirming surgeries, so they’d miss out on the benefits that come with changing their birth certificates.
"A recent study from the University of Washington has actually shown that trans youth who are supported in their identity actually do not have any increased rates of depression and anxiety," Lowe said. "So what does it mean for a trans child to be supported in their identity? This means having their name and pronouns used correctly."
State lawmakers in previous years have rejected a bill aiming to protect LGBTQ people under Montana’s civil rights law. Another controversial policy also rejected would have regulated transgender people’s access to bathrooms and locker rooms.
Policies to ban transgender women and girls from competing in interscholastic sports and to restrict what kind of care doctors can give to trans minors have received the most attention this year in Montana.
Supporters say the bills are meant to keep sports fair and to protect children from making long-lasting decisions.
The National Collegiate Athletic Association, NCAA, has had a policy guide for the fair, respectful and legal inclusion of trans student-athletes in men's and women's sports for more than a decade. Pediatricians have spoken out in opposition to the bills in Montana saying restricting health care for trans youth undermines best medical practice.
Sen. Diane Sands, a Democrat from Missoula, was the state’s first openly gay legislator and has advocated for LGBTQ rights for decades. She remembers the fight to overturn the law that made gay sex illegal, battling stigma that prevented people from seeking treatment for HIV, and the push for marriage equality.
She’s concerned over the high rates of violence and suicide transgender people face.
"So for the Legislature to continue to make their life a living hell through these bills that are denying them equal protection of the law, and for young students, to say that you can’t even participate in athletics, is extremely painful."
The coalition pushing back against these proposals, including human rights organizations, LGBTQ advocates and medical professionals, has grown. More than 250 business leaders have signed a letter asking lawmakers to reject the bills. They say new businesses, tourists and skilled workers will avoid the state if it’s unwelcoming to LGBTQ people.
Sands says the 2021 legislative session has been one of the hardest for LGTBQ advocates in two decades.
"Well, I think what’s happened is the fact that the governorship has changed."
Republican Gov. Greg Gianforte is Montana’s first Republican governor in 16 years. In an interview with Montana Free Press before the election, Gianforte said he didn’t think trans women should use women’s bathrooms and that trans women competing in women's sports is unfair. He’s also said discrimination is wrong and that protections for religious expression should be in place.
Gov. Gianforte has not said whether he’ll sign or reject the three bills that target trans Montanans.
His administration has announced support for the Religious Freedom Restoration Act.
Lt. Gov. Kristen Juras spoke in support of the bill when it was introduced in March.
"What this act does is provide the same level of protection to the very first right mentioned in the Bill of Rights of the U.S. Constitution that is given to the other important constitutional rights," Juras said.
Anthony Johnstone, a constitutional law professor at the University of Montana, says the state already has religious protection in place, and the Religious Freedom Restoration Act might not change much.
"The people who wrote this are cutting and pasting it from other states because they think it’s a good idea. It’s not clear to me, and there’s nothing in this law, that suggests they’re familiar with what the free exercise clause in Montana actually means, and how the courts have interpreted it."
But Johnstone says the three bills proposed that target transgender Montanans will likely raise sex-discrimination issues under state and federal law.
"Probably the clearest guidance we have is that last year or two years ago the Bostock case where the U.S. Supreme Court decided the federal civil rights law protecting people against employment discrimination on the basis of sex included protections based on sexual orientation and gender identity."
Johnstone says there are still unresolved questions, like whether the civil rights law protects gender identity in other settings. He says these three bills are also likely to raise constitutional questions regarding rights to equal protection and privacy.
Jawort says growing up and living in Billings as an LGBTQ and Native person has hardened her to feeling unwelcome in her hometown.
Although she's had friends who’ve left Montana for more accepting places, Jawort plans on staying put.
"I always kind of fall back on something, like this is kind of close to my homelands, my Northern Cheyenne homelands. It’s like, over just a few miles away is the Little Big Horn battlefield, and it’s like, [they] died fighting for the Cheyenne way of life and the Cheyenne way of life is me being Hemaneh, two-spirit person. Those people died fighting, they readily did it, and the best I could do is honor just being me, being Cheyenne."
LGBTQ advocates like the American Civil Liberties Union have vowed to take up legal challenges to the four bills if they’re passed into Montana law.