Montana could soon define trans people ‘out of existence’
The Daily Beast
April 1, 2023
Trans advocates speak out on the fight against SB 458 in Montana, which would strip legal recognition from trans and non-binary people, and those with intersex conditions.
Zooey Zephyr, the first and so far only transgender woman elected to public office in Montana, has become familiar with surreal hallway encounters with her Republican colleagues in which they compliment the Democrat representative for her advocacy and “moving the needle” on trans issues. This is just after they have spoken in favor of, or voted for, a piece of anti-trans legislation, she told The Daily Beast.
In this legislative session, a bill prohibiting gender-affirming health care has passed both Montana’s Senate and House of Representatives, and currently awaits the signature of Governor Greg Gianforte. Another bill would ban drag shows (it has passed the House; next stop the Senate); another would allow people to misgender and deadname trans pupils at schools; another would allow medical professionals to withhold care according to their moral and religious beliefs; another would ban “obscene” books from public and school libraries.
The latest, and most extreme piece of anti-trans legislation, SB 458—which will soon head to the House for consideration—seeks to define sex according to reproductive capacity, stripping legal recognition from trans, non-binary, and those with intersex conditions. Should it pass in Montana, campaigners are concerned about the likelihood of similar bills being introduced and passed in other Republican-led legislatures. (Jeff Laszloffy, the president of the conservative Montana Family Foundation, was reportedly a key architect in the drafting of SB 458; Laszloffy did not respond to a request for comment.)
So far, the Republicans piloting the legislation seem unconcerned that, if passed, the legislation would cost the state half its budget, an estimated $7.5 billion in federal funding—according to a fiscal note attached to the bill earlier this week—as SB 458 would fall foul of various federal laws, including the precedent enshrined in the “Bostock” Supreme Court case that established sex discrimination encompasses discrimination on the grounds of sexual orientation and gender identity.
Sponsored by Republican senator Carl Glimm, SB 458 defines “sex” based on reproductive capacity and capability, or as the bill puts it, “the organization of the body and gametes for reproduction in human beings and other organisms.” The bill states humankind is comprised of “exactly two sexes, male and female, with two corresponding gametes.” The sexes are “determined by the biological indication of male or female, including sex chromosomes, gonads, and non-ambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.”
A “female” is a human who, under “normal development,” produces “relatively large, relatively immobile gamete, or egg,” and a “male” is a human who “under normal development, produces small, mobile gametes, or sperm.”
Glimm says sex is “immutable” while gender is a social construct (Glimm did not respond to requests for comment for this article). He has said, “We can have policy discussions about where we want to use these terms later, but we need to define what those terms mean, because right now we’re getting into lawsuits because these terms get conflated and we don’t have clear definitions.”
Practically speaking, the bill, if passed, would mean trans people would be defined in law by their sex assigned at birth—and so their birth certificates, drivers’ licenses and other official documentation would all be at a variance to the gender identity they hold. They would also be misgendered on their death certificates and when interned at cemeteries. These mis-definitions of self would be used in more than 40 areas of the state code, effectively eradicating transgender people according to the laws of the state.
Zephyr, who represents the 100th House District in Montana’s state house, told The Daily Beast that SB 458 represented “discrimination from cradle to grave.” She testified in the Senate against the bill, and awaits its passage in the House.
Akilah Maya Deernose, staff attorney at the ACLU of Montana, told The Daily Beast of the bill: “For a start, it’s scientifically inaccurate. It reduces genders and sexes to their reproductive capacity. It leaves out people who don’t have a reproductive capacity. Beyond that it would prevent trans, nonbinary and intersex individuals from having state recognition of the identity they know themselves to be. It’s cruel. So many things don’t make sense. From birth certificates to driving licenses to cemeteries, in single-sex facilities and in housing, trans people would be required to use their sex assigned at birth rather than their gender identity.
“Many people are referring to it as the ‘Trans Erasure Act,’ but we are not. As much as the bill seeks to treat trans and non-binary people in an inhumane way, transgender people will not be erased from civil society, as much as Republicans would like them to be.”
Mija, a spokesperson for TransVisible Montana—the only statewide trans advocacy organization—told The Daily Beast that the bill did not just target transgender, nonbinary, and two-spirit Montanans, but by “putting the definitions of man and woman into very particular boxes doesn’t reflect the actual diversity within those binary structures. It’s getting real Handmaid’s Tale, putting all this into policy.”
SK Rossi, a managing partner in Central House Strategies, a government affairs and policy and advocacy consulting firm, told The Daily Beast that SB 458 would effectively turn trans, nonbinary, two-spirit, and some intersex people into “non-people. It defines us out of existence, and removes our legal rights and privileges from all sections of the state code it amends.”
Rossi, who is currently working in the Montana legislature on behalf of the Human Rights Campaign (HRC), said the communities impacted by SB 458’s scope and intent feel “disbelief, anger, and hurt. The state and particularly the Republican party and bill’s sponsor have chosen to legally eradicate our community, which we haven’t seen in any other state in country—at least not this broadly and decisively. It’s very upsetting. We live in a place we love, which has a government choosing to prohibit us from living openly or safely within its borders.”
Sarah Warbelow, legal director of the HRC, told The Daily Beast that the bill stood in stark contravention of the Bostock ruling, but also was motivated by “a desire on the part of some lawmakers to make it impossible for transgender people to function in the world. There are a handful of legislators who seem hellbent on erasing the LGBTQ community. Montana wants to force trans people to go back into the closet, and make it hard to live their daily lives.
“If you have a driver’s license with an ‘F’ (female) gender marker, meaning assigned female at birth, but you live your life as a man, it puts you in a position of danger outing yourself as a trans person every time you use that license. It’s a little thing most people take for granted, but it becomes dangerous for trans people when you don’t have documents that possess the right gender marker reflecting who you really are.”
Warbelow said that if SB 458 were passed it could lead to employees of businesses being discriminated against. “States have always had the ability to decide who is and who is not protected from discrimination under their own states’ laws. Montana law, like many states’ laws, have stronger protections. Under federal employment law, to be a covered entity, you need to employ 15 or more folks. In Montana, it’s one or more employees, and so—if SB 458 passes—somebody who works for a small business might have a limited access to legally countering discrimination should they experience it.”
“Many components of the bill are unconstitutional and conflict with federal laws. It’s definitely ripe for litigation,” Warbelow added, referring not just to the Bostock ruling but Section 1557 of the Affordable Healthcare Act—which outlaws discrimination when it comes to healthcare provision—and Title IX, which prohibits sex discrimination in education provision.
Warbelow would like the Department of Justice to issue a “statement of interest” in this, and other anti-LGBTQ and anti-trans bills passing into law, signaling that it is keeping a close eye on what Montana is attempting to do. If the $7.9 billion fiscal hit isn’t enough of a wake-up call to Montana legislators, said Warbelow, she would hope they recognize what an “inherent harm and danger” SB 458 represents to LGBTQ people.
James C. Nelson, a retired lawyer and former Montana Supreme Court Justice, has written that the law would not only violate federal law, it would also violate Montana’s own Constitution. “Discrimination based on sex is absolutely prohibited as a matter of Constitutional law, and it cannot be legalized by adopting a scientifically flawed, religiously grounded statute,” Nelson says.
“Transgender people are scared”
Trans people in Montana are living through the negative consequences of the bills’ presence in their daily lives. Deernose said a few weeks previously in Great Falls, the driver of a truck had pinned a transgender person against a wall while shouting anti-trans slurs. “After that, I received many calls from trans individuals in Montana saying, ‘I am terrified and want to leave this state.’ Those living away from the state have said, ‘I don’t feel safe to come back and visit.’”
“If you go to the hearings into the bills, you listen to trans people pleading and begging to be left alone,” said Deernose. “Not only are we scared of the animus being spread, we need to feel safe where we live. These bills don’t provide that. Transgender people are scared. They want to leave, or are stuck here and don’t know how they are going to survive. We’ve heard of people’s mental health greatly declining, and people saying, ‘I’m suicidal.’ It’s heartbreaking.”
Zephyr said the majority of anti-trans and anti-LGBTQ bills were part of a centralized attack, supported and powered by right-wing pressure groups. In right-wing circles, Zephyr said, trans rights had become “a talking point and cultural touchstone they can rile a base with.” The bills will only end when individual candidates realize their obsessive focus on the issue is costing them votes, she said.
“The second way things change is in the same way that marriage equality shifted as an issue,” Zephyr told The Daily Beast. “This is a more important aspect—that more and people get to know us, and see trans people living and thriving in their families and communities. When you know trans people and see the joy that transition has brought into our lives, it makes it harder to turn a blind eye to harmful legislation. Will we see this kind of legislation go away of all of a sudden? I don’t think so. But I think we will see this kind of legislation become more and more unpopular within those legislators’ communities, as voters know more and more trans people.
“If they know a trans person, issues relating to their equality and dignity move higher up their list of voting priorities. The hard part is the need to stop these policies is now—urgent and imminent. We’re going to beat these bills in court, but the sense of ostracization and state-sponsored violence is real. I’ve had friends and constituents and people in the trans community across Montana who have attempted to take their lives. I know friends have left the state, trans teens who have left the state. There is sense of fear in the community both across the state, and what we see in the country.”
“There are certainly some people saying, ‘We will stay, we’ve always been here and we will remain here,’” Mija told The Daily Beast, “but there has been an exodus of members of our community. There have been completed and attempted suicides because people don’t feel supported, or feel they have a place here or feel valued, or that they can live here in peace. People have left the state. We want those people to stay, but we also want to honor them in whatever makes them feel most safe.”
“There is no shortage of anti-LGBTQ and anti-trans legislation moving through the chambers of Montana,” Zephyr told The Daily Beast. “I think the hardest part of being a legislator in that room is working alongside people who you get good work done with when t comes to some housing and broad healthcare policies. They’re kind to you in the hallways. And then when your humanity is up for debate they will not stand up for you, and in fact will say ‘I don’t think your community deserves healthcare.’ ‘I think people should be able to deadname you in schools.’ Or, ‘Drag should be outlawed because I think it’s inherently dangerous and sexual.’ And it’s all veiled behind disingenuous arguments.
“I’ve had legislators who have voted for anti-trans bills come up to me immediately following that thank me for ‘standing up’ and telling me that I’m ‘really moving the needle’ on these issues and making a difference. I’ve had people who have spoken in support these bills check in and make sure I am OK. They ‘really care’ for me—in their words. I’ve seen how someone could divorce the cruelty of their legislative actions from their treatment of me, and not see how the former is hurtful.
“You can’t just suddenly come to me with kindness and not expect me to feel attacked. They’re causing harm and pain to me and my community, and to turn around and say ‘Good job, I support and care for you’ is cold comfort. Their words are meaningless if they are going to vote to hurt my community.”
“It is a hard place, a hard time, to be trans in America,” said Zephyr. “It’s hard to be trans in Montana, and in the legislature as well. But the more that this anti-trans legislation is proposed and brought forward, the more importance I believe my presence is in that room. We will not be silent.”
“It really is the last frontier of trans discrimination”
The presence of SB 458, and the other bills, was “really surprising, because historically Montana is more purple than red,” Deernose told The Daily Beast. “This last election we went very red, and we have a Republican supermajority in the legislature, and really we’ve been surprised at how much of animus has been directed at the two-spirit LGBTQIA community. Trans people make up such a small part of our population, yet for some reason there are more bills targeting trans people and members of the LGBTQIA community than anyone else. It’s an easy target for Republicans.”
Warbelow doesn’t think the authors of SB 458 have not realized how the bill would “impact a wide variety of folks beyond their intended targets.” Redefining sex in these essentialist ways is not only damaging to LGBTQ people is also out-of-step with how the country understands sex non-discrimination protections and prohibitions around sex stereotyping. This is going to have unintended harms, as negative intended harms.”
Rossi did not foresee SB 458, even while observing the number of bathroom and anti-trans healthcare bills nationally, including attempts—as in Missouri—to prevent adults aged 18 and over accessing healthcare.
“We heard conversation around ‘eradication’ at CPAC,” Rossi said. “We’ve known what the endgame has been for a long time, yet I’m frankly surprised Republicans in Montana have jumped straight to that endgame which is the legal eradication of trans, nonbinary, and two-spirit people. I was surprised the bill made it out of the Senate. It did have a good amount of opposition from Senate Republicans. I hope it doesn’t pass in the House of Representatives, and if it does I hope the governor vetoes it. It really is the last frontier of trans discrimination, and it is really the most extreme anti-trans, anti-nonbinary, anti-two spirit legislation I have encountered in 13 years of advocacy.”
“I do not think the majority of Montanans spend their time thinking about discrimination against trans, non-binary, and two-spirit people,” Rossi told The Daily Beast. “A faction of extreme, religious right activists are pushing for it. I definitely do not think a majority of Montanans spend their time thinking about how to make it more difficult for them to exist. They care about affordable healthcare, our terrible housing crisis, and helping kids have access to good education. There are many Republicans in this state and Republican officials who would prefer not to have these conversations, or bills and votes. I hope as SB 458 goes forward more people are willing to say that. The more they do the safer Montana will be for all of us.”
For Warbelow, “this bill is part of an escalation of attacks on LGBTQ people, particularly trans people. It’s a continuation and expansion of a pattern we are seeing across all states, and I worry very much if this bill becomes law other states will take a similar approach.”
Rossi is also worried that with the proposing of SB 458 Montana has become the standard bearer for a raft of dark anti-trans legislation. “At least in my time, Montana has never been the place for a breeding ground of extreme legislation. We used to watch other states for new worst legislation. Now Montana has become that state. That is sad for our community, and sad for Montana.”
The sobering irony of so many anti-trans bills circulating at the moment, Deernose told The Daily Beast, was that more laws were needed to protect trans people’s equality and safety. “Studies have shown how transgender people have greatly improved mental health outcomes if they receive gender-affirming healthcare, yet anything that helps that community to thrive is being taken away, along with things that enable transgender individuals to participate fully in society.”
Mija would like to see the same folks within the LGBTQ community, and straight allies, who are focused on fighting the drag ban to also show up to fight anti-trans bills—and to ask trans, nonbinary, and two-spirit people how best they can be allies. They would also like legislators to reject the “bad science” behind SB 458, although Mija said activists were prepared for more bill-making like it.
“We are prepared for this to go on and on,” Mija told The Daily Beast. “I think they’re doubling down on hate legislation, and trying to make a national movement. They are chipping away at states like Montana, because states and smaller places don’t have the resources to counter it. We don’t have the support we need. They do it here, then move on to a larger thing. Our legislators may be introducing it, but they are being backed by groups like the Heritage Foundation.”
Warbelow said the last couple of election cycles had shown anti-LGBTQ platforms had not been vote-winners. Coupled with the courts striking such laws down, she hoped lawmakers would ultimately be encouraged to focus on “real issues affecting their constituents.”
If they could address the legislators proposing SB 458 and other bills, Mija said, “We are waiting for them to accept themselves so they can find it in themselves to accept us. This is about their own fear, and the way they were raised and taught in not-good, wrong and inaccurate ways about sex and gender. They’ve got a place with us if they can be accepting.”
“I try to remain hopeful because I couldn’t do this work if I didn’t,” Deernose said. “But this year has been a year like we’ve never seen before. The attacks have been relentless. It’s just very ugly. I am hopeful that lessons have been learned from this session. A lot of these bills will be taken to court and overturned, and a strong signal will be sent to legislators that you have to provide basic civil rights and those civil rights cannot be taken away from individuals. The people in Montana deserve better than bills like this.”
“I remain confident in the knowledge that we will win in the end,” Zephyr told The Daily Beast. “We will win the court cases. We are already winning in our communities, as seen by how unpopular this legislation is. We will win in the legislatures ultimately, but they will lag behind as legislatures tend to do. The hope I have stems from the joy I see in trans people who have transitioned and who are living our lives—the love we experience for ourselves, for one another, and experience in our communities. Trans joy is a reminder of what transition brings to trans people. That is a beacon of hope and joy and delight that none of this legislation can destroy.”