Trans Group Voices Concern on Anti-Gay Montana Law

A trans equality group has voiced its concern to lawmakers in Montana, where the state legislature is contemplating an anti-gay law which would prevent cities from implementing anti-discrimination ordinances that cover GLBTs.

Republican State Rep. Kris Hansen introduced the measure after Missoula, a university town, implemented an ordinance banning discrimination based on real or perceived sexual orientation and gender identity. The ordinance, approved a year ago, applies to the housing market and also protects GLBTs from workplace discrimination.

At the time, anti-gay groups issued claims that extraordinary dangers would ensue if GLBTs were covered by anti-discrimination laws. A group claiming to be "an alliance of 17 organizations" posted warnings at a website called NotMyBathroom.com claiming that such an ordinance would lead to an increase in child molestation by gay men, Boy Scouts being forced to include girls in their troops, and men dressed as women using women's restrooms--and possibly raping women in the ladies' room.

Such arguments are familiar from groups in other states having used them to argue against gay political candidates and anti-discrimination measures meant to protect GLBTs. Anti-gay leaflets distributed in Gainesville, Florida, warned voters that openly gay mayoral candidate Craig Lowe supported "Gays in Women's Restrooms" as well as "Gay Marriage."

In Maine, the question of transgendered individuals using restrooms in accordance with their gender identity--rather than their physiology--reportedly led anti-gay groups to launch an effort to repeal the state's entire human rights law. The argument of "biology based bathrooms" has become a rallying cry that sums up a cross-section of GLBT rights causes, from family parity and marriage equality to workplace protections for transmen and transwomen.

Montana State Rep. Michael Morre offered a rationale for the measure.

"You introduce things in one city, you can do things differently in another city, you can do things in another town differently from that," said Moore. "If that is what you want, if you want to go down the road that can ultimately lead to one place, then sure, let's not pass this ordinance. But we need, this is what we do in here, to try to put things into the context of the whole."

A similar sentiment in Colorado two decades ago led to Amendment 2, the notorious anti-gay constitutional amendment which voters ratified in response to municipalities instituting protections for GLBT residents. The U.S. Supreme Court struck down the amendment in 1996. However, the Sixth Circuit Court of Appeals twice reaffirmed a virtually identical amendment adopted by the city of Cincinnati and applied to the city's charter in 1993. Cincinnati residents themselves struck the amendment to the city charter in 2004.

The bill has been approved by the Montana House of Representatives. The state Senate is expected to vote on the bill. If it passes into law, a court challenge could conceivably follow.

The Transgender Defense & Education Fund (TLDEF) would prefer that the bill not pass in the first place. "HB 516 would make it impossible for transgender, lesbian, gay and bisexual Montanans to seek protection from discrimination in the cities and towns where they live," a press release from TLDEF noted. "It is motivated solely by bias towards transgender, lesbian, gay and bisexual people, which is a constitutionally impermissible basis for legislation.

"It would deprive transgender, lesbian, gay and bisexual people of their right to participate in the political process and seek help from their local governments," the release added. "It would turn transgender, lesbian, gay and bisexual Montanans into strangers to a broad swath of Montana's government and would violate constitutional guarantees of equal protection under established United States Supreme Court precedent."

In a letter to State Sen. Ron Arthun, the group reiterated that argument.

"Montanans have spoken through their local governments and have stated clearly that they want to protect transgender, lesbian, gay and bisexual Montanans from discrimination in areas like employment and housing," TLDEF Executive Director Michael Silverman said.

"Transgender, lesbian, gay and bisexual Montanans want the same right to live and work free from discrimination that everyone else enjoys. It is unconstitutional for Montana to target them by taking away their right to pass local laws that protect them from the discrimination that they face in the cities and towns where they live.

"Montana must treat all Montanans equally," added Silverman. "It violates the Constitution when it closes its doors to its transgender, lesbian, gay and bisexual residents simply because some people do not like them."