Missoula judge continues pause on Montana’s ‘bathroom bill’
Keila Szpaller
(Daily Montanan) Say a man who transitioned after being born a woman walks into a women’s bathroom, as House Bill 121 would require him to do.
The man has XX chromosomes but transitioned, and he outwardly presents as a man.
Monday, Missoula County District Court Judge Shane Vannatta asked lawyers in a dispute about HB 121 how Missoula County, for instance, should enforce that situation.
House Bill 121 requires public restrooms and changing areas exclusively for males or females, requires people to use bathrooms based on “external genitalia present at birth,” and defines sex as strictly male and female.
It says a library or prison or museum, for example, “shall take reasonable steps” to provide individuals with privacy from members of the opposite sex.
Also, it says an individual who “encounters another individual of the opposite sex” in the restroom can file a civil lawsuit against the “covered entity,” such as a prison, domestic violence shelter or school.
In the court hearing on HB 121, Vannatta said in his hypothetical situation, a clerk who sees the transgender man walk into the bathroom might decide to sue the county.
The bill allows individuals to sue for failing to “take reasonable steps” to prohibit the other individuals from using the bathroom or changing room designated for the opposite sex.
Then what?
Thane Johnson, on behalf of the state, said it was the toughest situation he could think of related to the bill at issue in Perkins et al v. State of Montana.
“You raise a good hypothetical. I can’t deny that,” Johnson said.
But he also said the bill is “a little bit bigger” than being just a “bathroom bill.” He said the bill aims to protect women and young girls in facilities “where they have no choice,” such as detention centers.
“I think there are other issues that are dealt with by this bill that are important, and that’s my point,” Johnson said.
But Alex Rate, with the ACLU of Montana, said that situation is one of the “fatal problems” with the “disingenuous” law, and it’s one way harm starts to pile up for the clients of the ACLU and Legal Voice.
The plaintiffs allege the bill is illegal and violates the rights of clients under the state constitution, including “the rights to equal protection, privacy, to pursue life’s basic necessities, and due process.”
Rate said the clerk would sue Missoula County for failing to enforce HB 121, discovery would happen, and the transgender man just wanting to use the bathroom would be caught in the middle.
“That individual — who is doing nothing wrong and who is entirely removed from the dispute between the individual and the covered entity — would be dragged into a lawsuit,” Rate said.
In his remarks to the court, Rate also said the enforcement was problematic in that it created a “bounty hunter system.”
“It turns our state into a vigilante state, where ordinary citizens are incentivized to file lawsuits against state and local governments if they perceive that somebody is using the, quote, incorrect public facility,” Rate said.
Rate said the harm to people who are transgender and intersex starts immediately, although Johnson countered that the law needs time to be implemented. However, the lawyers agreed to Vannatta’s request for time to issue an order.
The bill landed in court on the same day Gov. Greg Gianforte signed it, and Vannatta issued a temporary restraining order soon after, halting implementation of the bill, but only for a matter of days.
With approval from the lawyers, however, Vannatta said Monday that he wanted to extend that expiring order through May 16 in order to give himself time to craft a new decision on the request to stop the bill through a final court decision.
The ACLU had asked for an order from the bench, or an immediate and verbal ruling, but Vannatta said he wanted to issue one in writing so the parties would have a rationale they could appeal.
In recent years, the Montana Legislature has approved numerous bills that affect people who are transgender, and in his arguments Monday, Rate said HB 121 is the most recent volley in a trend since 2018.
“This case challenges the latest manifestation of this state’s peculiar obsession with singling out transgender and intersex Montanans for discrimination and harassment,” Rate said.
Rate said the bill includes a definition of sex from an earlier bill, Senate Bill 458, which the same district court found had unconstitutionally treated cisgender individuals — whose gender aligns with their sex at birth — differently than transgender and intersex individuals.
But Rate said HB 121 is “particularly bigoted” because it bans trans people from using public restrooms, changing rooms and sleeping quarters — at domestic violence shelters — that correspond with their gender identity.
“It forces trans people to out themselves by using public facilities according to their sex assigned at birth,” Rate said.
He said it prevents intersex people from using public facilities altogether.
Rate said the case reminded him of the fight over a different bill, one that eliminated Election Day registration. He said the purported government interest was to prevent voter fraud, but the state’s lead witness had to search historical records to find any.
In the current case, he said, nearly 60% of people who are transgender report avoiding public restrooms to avoid confrontation given they are already vulnerable to violence, and his client’s declaration included evidence of fear.
And laws already on the books address other protections.
“We’ve got laws criminalizing indecent exposure,” Rate said. “We’ve got laws criminalizing sexual assault and violence.
“So there’s no need to adopt a law as draconian as HB 121 when individuals in public facilities are already protected.”
On behalf of the state, Johnson, however, said the law was the “Safe Space for Women and Girls Act,” a protection that resonated with his own experience.
Johnson said he recalled serving as a tribal court judge and seeing the number of young girls that became victims of sexual assault, and because federal prosecutors were slow in prosecuting, he saw juvenile offenders who were young girls.
“They acted out as a result of being a victim of sexual crime,” Johnson said.
He said he acknowledges people who are transgender are vulnerable, but he said they are not the only ones in that situation. He pointed to young girls, and especially those in a juvenile detention center, which the bill includes.
Johnson also said the Montana Supreme Court and the U.S. Supreme Court could help if they decided whether sex discrimination includes transgender discrimination, but the question is still an open one.
At the same time, Johnson said, some of the fixes are simple, such as privacy for bathrooms.
He said at one campus, “single use” simply meant creating privacy in the form of porta potties and ensuring locks on doors.
Vannatta, though, imagined what might happen during a game if the University of Montana decided to turn a bathroom with multiple stalls into a single-use restroom with 40 people waiting in line.
However, the judge also said the issue Johnson raised about safety in corrections facilities resonated with him.
Vannatta said he had talked to many judges who are “perplexed” when it comes time to sentence people to jail or prison who are trans or in the midst of a transition in ways that keep them safe and keep the broader population safe.
The judge also asked Johnson questions about a couple of situations the lawyer raised, including a Helena girl scared by a man who followed her into a bathroom.
“Was that a trans man or transgender individual?” the judge said.
Johnson said he didn’t have any indication the person was transgender, but he said the person assaulted the girl.
Vannatta also asked if Johnson had evidence that trans individuals have committed sexual assault in bathrooms or changing areas, the areas the bill is intended to protect.
Johnson said not in Montana, but outside the state. In response to the judge’s request for statistics, Johnson said he believed a person in North Carolina was sexually assaulted in a school bathroom by a person who had claimed to be transgender.
However, he said he believes “there are probably statistics developing,” and if the case proceeds, the state would compile them as best it could.
In general, Johnson said it was too early to see how the law was working, and he urged the court to take a step back and allow it to take effect.
“My bottom line, your honor, is this case cries for some factual development. Let’s see how it plays out,” Johnson said.