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.

Extracts from the letter appear below (emphasis is mine):

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.

Photo used under the Creative Commons Attribution License, with thanks to brainchildvn.


Norma V.
Norma Villarreal7 years ago

Get past the homophobial and allow human beings to be just that ----human beings.

Dee C.
Dee C7 years ago

Why is it the only thing Republicans can take action on is to remove rights from people and move the whole population back in time?

kenny s.
Kenny Stidham7 years ago

Go to YouTube and watch "The Ally Effect". This young coach is amazing and will help make the world a better place for all gays.

Robert Tedders
Robert T7 years ago

@Arvin E.: While I can't help agreeing with you, your 'bedroom' comment was a little distasteful!! Although I'm sure the one or two gay guys I used to know(one dropped out, one graduated) would find it L.O.L-funny!! *grins*

William Y.
William Y7 years ago

Theocratic BS has no place in government.

Arvin E.
Arvin E.7 years ago

I moved back to Mont. in 2003 and my landlord admitted to me in 2008 that if I had tried to rent from him 10yrs earlier he would not have rented to me.
My grandparents homesteaded here in Mont. and became citizens. I have the papers to prove it. So there is a little progress being made here in the Uncommonland.
I have been wondering since America has treated the Native Indians as nations (although the white race has NEVER kept any treaty with them) why the Gay people don't team up with the Indian Nations, get married, pass equal treatment just to watch the Repukes squeal.
Gotta remember most Mont. of the Mont. legilature are ranchers and farmers on Govt. wellfare known as subsadies.
Rubber stamp Rehberg-R is going to try for Sen. Tester's seat in the Senate thus Rehberg would get a retirment from the House and Senate. Right now they are tied in the polls.
Hell, I'll make it E-Z for the Repukes here in Mont. If they ask I'll send them a movie made in my bed room since their minds seem to be there anyway,might as well see the real thing.

Lyn F.
Lyn F.7 years ago

Wow David J., you actually called the almighty male reproductive organ women! Can you believe it? Finally a man that calls the male "precious jewels" "Junk!" I wonder how many women agree with that term?

Alice B.
Alice B7 years ago

Macho morons and bimbo brainless bitches a la Tea Party playing homophobic "God" instead of being willing to *learn from transgender people.*
Such a disgrace. Montana, the Land itself, is a beautiful place - where humans leave Mother Earth alone.

Jane H.
Jane H7 years ago

Mostly great comments---thanks all of you who believe in the 14th Amendment!!

Navada H.
Navada H7 years ago

Scott Christensen, this is not a theocracy! What your 'god' thinks should not be part of our laws. If you want to live in a theocracy, please move, the rest of us would rather live in a free society where everyone has rights and not just those christians deem worthy.