Metro Weekly

ACLU sues to block Montana’s anti-transgender ballot initiative

Lawsuit alleges initiative is unconstitutional and would undermine existing local ordinances

Photo: Nikolai Nolan, via Wikimedia.

The ACLU of Montana is suing the state over a proposed 2018 ballot initiative that would force transgender people to use only those restrooms or locker rooms that match their biological sex as listed on their original birth certificate.

The lawsuit, filed in Cascade County District Court on Tuesday, challenges the legality of the ballot initiative known as Initiative 183, reports The Missoulian. The plaintiffs in the suit are seven transgender Montanans, the parents of a transgender daughter, and the City of Missoula, who have asked the court to declare the initiative unconstitutional and prevent Secretary of State Corey Stapleton (R) from certifying the initiative to allow it to be placed on the 2018 ballot.

As written, the initiative would not only restrict which facilities transgender people could access, but would require all multi-occupancy public facilities as either for men or women, essentially outlawing unisex bathrooms in the state. It would also allow any person to sue government entities that do not impose such restrictions on restrooms or locker rooms for an unlimited amount of money by claiming they suffered “emotional or mental distress” from having to use the same facilities as transgender people.

“I-183 is so vague and confusing that the Montanans and local governments required to enforce I-183 would have no idea how to comply with it,” Alex Rate, the legal director for the ACLU of Montana, said in a statement. “I-183 adopts a regressive and rigid definition of sex that has been rejected by the medical community. Furthermore, if I-183 became law, local governments would be subject to frivolous lawsuits, yet I-183 does not provide sufficient clarity as to how they can avoid a violation.”

In their lawsuit, lawyers for the plaintiffs argue that the initiative violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and would undermine or overturn protections provided by nondiscrimination ordinances in cities like Butte, Bozeman, Missoula, and Helena.

“Transgender Montanans have been historically and purposefully subjected to unequal treatment solely on the basis of being transgender — a characteristic that bears no relation to their ability to perform in or contribute to society — and therefore discrimination on the basis of transgender status is suspect and demands a heightened level of scrutiny,” the complaint reads. “I-183 was proposed for the purpose of disadvantaging transgender people and is based on animus against transgender people.”

“I-183 both creates an explicit classification and is designed to impose different burdens on different classes of persons,” the complaint continues. “Functionally, it would push many transgender people out of public life.”

The proposal for Initiative 183 was officially submitted in May by the Montana Family Foundation after lawmakers in the Republican-dominated legislature refused to pass a “bathroom bill” similar to North Carolina’s HB 2 law and bills focused on transgender people’s access to publicly shared facilities that were defeated in states like South Dakota, Virginia, and Texas.

In July, Montana Attorney General Tim Fox certified the language of the ballot initiative. But the ACLU of Montana sued, arguing that the exclusion of the measure’s potential economic consequences and the lack of mention of how the measure would directly impact transgender Montanans would not allow voters to make an informed decision on the matter. The Montana Supreme Court concurred with the ACLU’s arguments, and ordered Fox to write a new ballot statement and economic impact statement.

To qualify for the ballot, the initiative would need to gain 25,000 signatures from registered voters by June 15. Both opponents and proponents of the measure believe that the Montana Family Foundation would be able to obtain enough signatures by that time, particularly considering that thousands have already been collected.

Proponents of the measure have reiterated arguments used to justify bathroom bills in other states, including that it is essential to protecting the privacy and safety of girls and women.

“Girls shouldn’t have to shower in front of boys,” Montana Family Foundation President Jeff Laszloffy told The Missoulian when the initiative was first proposed. “It’s just common sense. We will take the Locker Room Privacy Act to the people and let them have their say.”

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com