Metro Weekly

ACLU challenging Montana anti-trans ballot initiative

They argue it obscures goal of banning transgender people from facilities matching their gender identity

Photo: Flinga, via Wikimedia

The ACLU of Montana is taking aim at a proposed anti-transgender ballot initiative for attempting to deliberately mislead voters.

The ballot initiative, I-183, was proposed by the Montana Family Foundation after the state legislature refused to pass an anti-transgender “bathroom bill.”

But LGBTQ advocates argue that both the proposed ballot and its fiscal impact statement fail to explain the implications of passing such a law.

“Any description of the true intent of this discriminatory initiative — to prevent transgender individuals from using public facilities that correspond with their gender identity — is entirely absent from the ballot statement,” Caitlin Borgmann, executive director of the ACLU of Montana, said in a statement. “In order for Montana voters to cast an intelligent and informed vote they must have clear and accurate information about the Montana Family Foundation’s proposed initiative.”

Specifically, LGBTQ advocates raise four separate objections to the initiative:

  1. That it tries to obscure what the effect of the law would be on transgender or intersex people;
  2. That the ballot statement is prejudicial in favor of LGBTQ opponents by defining the issue as “privacy” rather than as a ban on transgender people from public restrooms that match their gender identity;
  3. That it wrongly states that the initiative only applies to one facility at a government entity, rather than all public facilities across the state; and
  4. That it fails to explain how the initiative would affect local nondiscrimination ordinances in that have been approved in the cities of Bozeman, Missoula, Helena, Butte and Whitefish.

“The ballot statement claims that the initiative requires government entities to provide ‘privacy,’ a vague term describing something most people want. But given the actual text and consequences, voters may or may not agree that the initiative would protect privacy,” the ACLU writes in its petition to the Supreme Court of Montana, noting that the initiative would eliminate all unisex facilities and encourages the government to demand evidence of a person’s biological sex at birth in order to use restroom or other multi-user public facilities.

Rather, the ACLU argues, the ballot initiative should be neutral, describing the actual effect of the proposed initiative, which would be to limit transgender people to only those facilities that match their assigned sex at birth.

The petition also notes that the proposed initiative could lead to superfluous lawsuits by allowing people offended at transgender people’s mere existence to sue for unlimited amounts of damages for “emotional and mental distress.”

“This anti-LGBTQ initiative will have serious economic consequences for state and local governments,” Alex Rate, the legal director of the ACLU of Montana, said in a statement. “In a year where the state budget is already in dire straits, the initiative would be an unfunded mandate on local governments who would also have to set aside funds for lawsuits seeking emotional distress damages.”

LGBTQ advocates also argue that Montana could risk a financial backlash similar to the one felt by North Carolina in 2016, if it passes a law that is seen as unfairly targeting a minority group like the transgender community.

The ballot initiative’s fiscal impact statement does not address any long-term financial losses that could result if businesses, conventions or concerts boycott the state over the proposed law, which could potentially cost millions or even billions of dollars.

The state has five days to respond to the ACLU’s court petition, after which the Montana Supreme Court will make a ruling determining whether the ballot language must be amended to reflect its true intent.

In the meantime, opponents of LGBTQ rights are currently gathering the requisite number of signatures from registered voters to get the initiative placed on the ballot next November.

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

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