Metro Weekly

Montana Supreme Court tells state to revise anti-transgender measure’s ballot statement

Court rules ballot and fiscal impact statements could "prevent a voter from casting an intelligent and informed ballot"

Photo: AxelBoldt, via Wikimedia.

The Montana Supreme Court has ordered the Office of Attorney General Tim Fox (R) to rewrite language for the ballot statement and fiscal note associated with an anti-transgender ballot initiative that voters will decide on during the 2018 election.

Initiative 183 would force Montanans to prove their gender before accessing restrooms, locker rooms, or other changing facilities. Specifically, the measure would restrict transgender people to using only those facilities that match their biological sex at birth. It was proposed and drafted after the Republican-dominated legislature failed to pass a stand-alone bill limiting transgender access to public restrooms.

But the state Supreme Court found that the ballot statement and fiscal note did not adequately explain what the impact of its passage would be, including potential economic consequences that could be visited upon the state, and the fact that it did not explicitly mention that the measure is targeting transgender individuals.

The ACLU of Montana had challenged the initiative, arguing the exclusion of the measure’s economic consequences and discriminatory impact would not allow voters to make an informed decision on the matter. The Supreme Court Justices concurred with that interpretation of the ballot statement’s language, even as they noted that state law required the statement to be no longer than 135 words.

“This Court has upheld ballot statements approved by the Attorney General as long as they employ ‘ordinary plain language, explaining the general purpose of the issues submitted in language that is true and impartial, and [are] not argumentative or likely to create prejudice either for or against the issue,'” the court’s ruling reads.

“As long as the Attorney General’s wording ‘fairly states to the voters what is proposed within the Initiative, discretion as to the choice of language . . . is entirely his.’ However, a court must intervene when a ballot statement’s language would ‘prevent a voter from casting an intelligent and informed ballot.'”

Fox’s office must now revise the ballot statement and fiscal note to comply with the Supreme Court’s order, including mentioning economic consequences and the impact of the initiative on the transgender community, both of which were specifically mentioned in the opinion

“The original description did not mention the word ‘transgender,’ but it is undeniable that I-183 will operate to banish transgender Montanans from full and equal participation in public life,” Caitlin Borgmann, the executive director of the ACLU of Montana, said in a statement. “Moreover, I-183 carried significant financial risk for Montana’s state and local economies. North Carolina took a projected $3.76 billion hit to its economy when it passed a similar anti-transgender law. Montana voters are entitled to cast informed ballots. Thanks to the Supreme Court’s ruling, the true effect of the initiative must now be made clear to voters.”

ACLU of Montana Legal Director Alex Rate hailed the Supreme Court’s decision as an “important step forward.” Rate also left open the door to a possible legal challenge should the ballot initiative be approved.

Additionally, other LGBTQ advocates are expected to challenge the validity of signatures from registered voters that are required to get the measure placed on next year’s ballot. Those signatures are currently being gathered by backers of I-183.

“The Supreme Court has ensured that when Montanans vote on I-183 and decide whether or not to legalize discrimination, they will be informed about the societal and economic costs for regulations that target our transgender friends and neighbors,” Rate said. “Rest assured, the ACLU of Montana will continue to investigate any and all avenues available to ensure the I-183 never becomes law.”

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