Drag ban, sex definition and MICWA bills signed into law
Nicole Girten
(Daily Montanan) Gov. Greg Gianforte recently signed into law a bill outlawing drag performances on public property, a bill defining sex as either “male” or “female” and a bill placing language from the federal Indian Child Welfare Act in state statute.
Drag Ban
House Bill 359, sponsored by Rep. Braxton Mitchell, R-Columbia Falls, bans drag performances on publicly owned property; it prohibits drag story hour events – where drag performers read story books to children – from libraries and schools with a $5,000 fine and ability to suspend a teacher for one year; and it allows minors or their parents to sue for $5,000 in statutory damages against a performer up to 10 years after the performance.
The bill, according to the legislature’s website, was signed into law on Tuesday with an immediate effective date.
HB 359 went through several changes through the legislative process. At one point, it was gutted in the Senate by an amendment brought by Sen. Chris Friedel, R-Billings, but the changes were rejected by the House, which sent the bill to a free conference committee.
Mitchell put back the original intent of the bill during the smaller committee, adding definitions for “drag queen,” “drag king” and “drag story hour.”
In an interview with the Daily Montanan after the free conference committee, Mitchell spoke about street drag performances in Florida where signs were put up saying minors could not cross a certain point after a similar law was put in place there and what he characterized was a public outcry in opposition to the Drag Story Hour event at ZooMontana in Billings last summer.
“It’s clear that it is sexual in nature and that they are specifically targeting a certain demographic, and that’s our kids,” Michell said, adding the queens at the event had “exotic names.”
Mitchell said he didn’t see a First Amendment issue with the bill.
A similar bill signed into law in Tennessee was halted by a federal court judge on First Amendment violations, as reported by the Associated Press.
The bill received staunch opposition from drag performers in the state, theater companies who receive state funds, and organizations like the ACLU of Montana and the Montana Human Rights Network, among others.
In the Senate Judiciary Committee, Sen. Bob Brown, R-Trout Creek, asked opponent SK Rossi with the Human Rights Campaign where the line should be between family friendly and adult drag shows.
“I think what you’re hearing from parents in the audience is they want to decide where the line is. They want their rights as parents to be respected. And they should get to decide what the line is for their kids,” Rossi said. “And if they cross it, as you heard from opponents, we have systems in place to deal with crossing a line that moves into harming a child.”
Sex definition
A bill to define sex strictly as “male” and “female” in Montana code was signed into law on Friday. Opponents to the bill said in committee it would strip transgender nonbinary Montanans from legal code, one of whom includes Missoula Democrat Rep. SJ Howell.
The bill would impact legal documentation for nonbinary and intersex Montanans from their birth certificate to their death certificate. A legislative fiscal division analysis found the bill could risk half the state’s budget, $7.5 billion dollars, due to its conflict with federal protections for sexual orientation and gender identity.
The bill has been opposed by medical professionals as not being medically accurate. The ACLU of Montana and the Human Rights Campaign have said it is the most discriminatory bill against the LGBTQ+ community in the country.
Bill sponsor Sen. Carl Glimm, R-Kila, and a majority of Republicans have largely said that sex is binary, but it’s gender that has a spectrum and said Democrats should define gender in legal code. The origin for this bill came after Glimm’s bill from the 2021 session targeting the ability to amend gender markers on birth certificates temporarily stopped in Yellowstone County District Court. The state could be held in contempt next week for not following court orders.
Minority Leaders Sen. Pat Flowers of Belgrade and Kim Abbott of Helena released a joint statement on the passage of the drag ban bill and the sex definition bill saying Montanans want freedom to live without government intrusion.
“Governor Gianforte’s decision to sign SB 458 and HB 359 into law betrays that freedom in favor of a direct, government attack on the fundamental human rights of LGBTQ+ Montanans,” said Flowers and Abbott. “Montana Democrats stood against these bills in the Legislature, and we will continue to stand against any efforts to take away basic freedoms from Montanans, including our friends, family and neighbors who are transgender, nonbinary, intersex and Two Spirit.”
MICWA and ICWA for All
In light of the U.S. Supreme Court case that challenges aspects of the federal Indian Child Welfare Act, bill sponsor Rep. Jonathan Windy Boy D-Box Elder, introduced legislation to incorporate what is seen as the “gold standard” of child protective services into state statute.
The bill was amended in the Senate Public Health, Welfare and Safety committee, where Sen. Dennis Lenz, R-Billings, had his own ICWA proposal known as “ICWA for All,” which would apply concepts of ICWA to all child welfare cases.
Both bills were signed into law by Gianforte last week.
In conference committee the Friday before the session ended, a delegation from the House and Senate came together to discuss an amendment from Windy Boy that struck out the termination date in 2025 that was added in the Senate and added language that said in a case where it isn’t clear if the child is Native American or not, the case be considered ICWA until determined otherwise.
“We do need to leave this into the arms of the tribes as far as making that determination,“ Windy Boy said. “I sure would hate to have somebody in HHS (state Department of Public Health and Human Services) in Helena making a determination of who’s a child in Rocky Boy.”
Both of those changes failed, but other aspects of Windy Boy’s amendment stayed, including a qualified expert witness for ICWA cases and the striking of the clause that would have voided the act if the U.S. Supreme Court found ICWA to be invalid in its entirety.
Windy Boy told press the day after the legislature ended that he wanted to go to court over the Indian definition aspect of the bill.
Another Windy Boy bill putting in place more reporting requirements for schools that accept state funds to teach Indian Education for All, $3.5 million a year, was signed into law on Monday.
The bill also makes the curriculum required, rather than encouraged, in the state of Montana.