Trans Group Slams Montana Law as Unconstitutional
The Transgender Legal Defense & Education Fund (TLDEF) is urging Montana lawmakers to vote down a bill that would not only repeal a Missoula LGBT-inclusive employment protections law but would forbid Montana cities from enacting similar ordinances in the future.
The legislation, authored by Republican Representative Kristin Hansen, cleared the House last month by a 60-39 vote and won a Senate committee’s approval last Friday, meaning that it could be up for a full Senate vote within the next few days.
However, equality proponents have expressed serious concerns over both the legislation’s aims and constitutionality with the TLDEF letter, that is addressed to Senate lawmakers and dated March 21, saying that the bill is entirely anti-LGBT in nature.
HB 516 is meant to do one thing only: to make it impossible for transgender, lesbian, gay and bisexual Montanans to seek protection from discrimination in the cities and towns where they live.
HB 516 suffers from at least two constitutional infirmities.
First, it is motivated solely by animus towards transgender and gay people, which is a constitutionally impermissible basis for legislation. Second, it deprives transgender and gay people of their right to participate in the political process and seek help from their local governments. That privation – which turns transgender and gay Montanans into strangers to a broad swath of Montana’s government – is by itself a violation of constitutional guarantees of equal protection.
HB 516, as amended last Friday by the Local Government Committee, would prohibit a local government from passing any ordinance prohibiting discrimination on any grounds “not specifically included as a protected class under the provisions of [part 1 of the Montana Human Rights Act.]”
The Montana Human Rights Act prohibits discrimination “because of race, creed, religion, color, sex, physical or mental disability, age, or national origin.” Because sexual orientation and gender identity and expression are not specifically included as protected classes in part 1 of the Montana Human Rights Act, HB 516 would strike down local legal protections from discrimination that transgender and gay Montanans currently rely upon.
The bill that these anti-transgender and anti-gay activists crafted would prohibit any local government from enacting any “ordinance, resolution or policy” prohibiting discrimination on any grounds except those listed in the Montana Human Rights Act.
Those other categories are just incidental, however, to the intentions of HB 516′s drafters. The point of HB 516 is to target transgender and gay people by stripping them of existing protections from discrimination, and depriving them of the right to seek protection from discrimination from their local governments in the future. The file for the Bill Drafting Request itself reveals that this has been its purpose from the very beginning. A copy of the Missoula civil rights ordinance is attached to LC 1865′s Bill Drafting Request.
The Montana Human Rights Act does not specifically include gender identity or expression, or sexual orientation. It also does not mention other grounds of discrimination which are prohibited by Montana local governments, such as veteran status, pregnancy, marital status, political beliefs, or cultural background.
It contains two handwritten arrows, one pointing to the definition of
“gender identity or expression” and the other to the definition of “sexual orientation.” It does not contain any other handwritten arrows pointing to, for example, the other protected categories in Missoula’s law that are not protected in the Montana Human Rights Act.
Indeed, HB 516′s proponents have been upfront about their discriminatory intent. Describing his lobbying efforts inside the Capitol, Montana Family Foundation’s President, Jeff Laszloffy, stated that “House Bill 516, by Representative Kris Hansen of Havre, [is] a bill to prevent municipalities from passing gay rights laws. The bill stemmed from the Ordinance passed by the Missoula City Council that made discrimination against gays, lesbians, bisexuals and transvestites illegal at the city level.”
Rhetoric during legislative hearings on the bill was inflated to say the least.
From On Top Magazine:
At a House hearing on the proposed measure, gay rights opponents suggested that being gay should be criminalized.
“It is God himself who says that homosexuality is an abomination, and he has various punishments for that, too,” said Harris Himes, a pastor at Big Sky Christian Center in Hamilton. When asked for an example, Himes quoted Leviticus saying that gay people “surely shall be put to death.”
Other opponents railed against the Missoula law’s protections for transgender people, suggesting that the law placed women and children in danger.
“This law in Missoula means that a person with a penis can now go into the showers where the people with vaginas have gone,” Dallas Erickson of Montana Citizens for Decency through Law said.
In other news of interest, On Top Magazine also reports that, last Friday, the Montana House voted down a bill to officially remove the criminalization of sodomy. The Republican-controlled Senate had approved the measure 35-14.
The 2004 United States Supreme Court decision Lawrence v. Texas famously rendered such anti-gay laws unconstitutional, but many states still have such laws on the books, and there are still some instances where officials have used those laws, however incorrectly, when dealing with same-sex couples.