Decks clear for Montana bathroom battle

DC

David Crisp

Sometime soon, you may be asked to sign a petition to put the Montana Locker Room Privacy Act on the ballot in November 2018. Caution: Cogitate before signing.

The ballot language never specifies this, but Initiative 183 would require transgender people in publicly owned buildings to use “protected facilities” such as locker rooms and restrooms that correspond to their biological gender, not their gender identity. Attorney General Tim Fox approved ballot language for the petition last week, and supporters have to gather 25,800 signatures from at least 34 legislative districts to bring the issue to a public vote. On Tuesday, the American Civil Liberties Union of Montana asked the Montana Supreme Court to examine the ballot language for legal sufficiency.

Set aside for a moment the question of what restrooms and locker rooms transgender people ought to use. Don’t think about 14-year-old daughters being exposed to male genitalia in public showers. Instead, let’s look at a narrower question: Is this a good law?

First, some background. The Montana Locker Room Privacy Act was pushed during the legislative session by the Montana Family Foundation, the socially conservative Laurel group that hoped to get the Legislature to put the act on the ballot. But the MLRPA died in the House Judiciary Committee, which voted 11-7 against it.

One of the act’s supporters was Rep. Barry Usher, R-Billings, who said, “If we don’t do this, I could actually walk into a bathroom, a girls’ bathroom or shower, and I would find it offensive that I could do that.”

Note to Barry: Please don’t presume that claiming to be transgender amounts to a get-out-of-jail-free card for creeps in restrooms. Even without the MLRPA, Billings police in 2015 arrested a 33-year-old man who wandered into the women’s restroom in Pioneer Park and was caught peering into a stall containing a 4-year-old girl. He was charged with prowling and disorderly conduct, with no reference to gender identity. Courts that have rejected laws similar to the MLRPA have found no evidence that transgender people are more likely to commit these kinds of offenses than anyone else.

Turned down by the Legislature, the Montana Family Foundation is holding banquets in Bozeman on Oct. 3 and Billings on Oct. 24 to raise funds for its ballot initiative effort.

For the record, ballot initiatives are a lousy way to pass laws. Laws that hold judicial water need to be debated, massaged, edited and amended. They require cooperation and collaboration, just like the laws the U.S. Senate passed back when we had a functioning democracy.

Early opponents of this initiative include usual suspects: the Montana Human Rights Network, Montana Women Vote, Forward Montana, Planned Parenthood of Montana, the Montana Coalition Against Domestic and Sexual Violence, the Pride Foundation and the ACLU of Montana, which wrote a letter to Attorney General Tim Fox in July asking him to find the initiative “legally insufficient, and constitutionally defective.”

The ACLU’s 11-page argument should be read with skepticism. For one thing, it was aimed primarily at the ballot language, not at the initiative itself. For another, it reads a little like the scattershot approach of an attorney on the wrong end of the law, tossing a bean bag of arguments at the wall, hoping some of them stick.

For example, the ACLU argues that I-183 violates the requirement that ballot initiatives be limited to only one subject. And the ACLU says the act’s definition of “changing facility” and its failure to define “state of undress” make the statute so vague that it could prevent transgender students from removing winter coats in a classroom. The application of the law, the ACLU says, is “potentially limitless.”

But even ACLU arguments that appear to be a stretch deserve scrutiny. For instance, the ACLU complains that the MLRPA defines sex as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.”

“Verifying sex via genetics is truly bizarre,” the ACLU says. Really? Well, if you read the links the ACLU provides, you find yourself in a world where genetic and anatomical anomalies abound, perhaps affecting as many as 4 percent of births, and at least six genetic makeups produce living humans. Moreover, science suggests, the brain has its own ways of determining gender identity not necessarily related to what the body indicates, a complication the MLRPA ignores.

It appears that if God intended for us to boil everything down to just two immutable sexes, then she has an awfully twisted sense of humor.

More to the point, the ACLU argues that the MLRPA provides that people who encounter someone of the opposite sex in a “protected facility” can sue the governmental entity that controls it if the government failed to take “reasonable steps” to keep the sexes separate.

Exactly what those steps might be is unclear. The only specific requirement is that the government post signs designating which sex may use the facility. The ACLU suggests the signs would need to say something along the lines of “Only persons whose immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth may use this locker room.”

But suppose a public college has an openly transgender student. What obligation does the government have to ensure that student obeys those signs? For that matter, what obligation does the government have to determine what the student’s “immutable sex” was at birth?

The ACLU’s case gets a boost from Montana’s constitutionally protected right to privacy. When the Montana Supreme Court in 1997 tossed out the state’s law against sexual contact between people of the same gender, the court held that it was not the “judiciary’s prerogative to condone or condemn a particular lifestyle and the behaviors associated therewith upon the basis of moral belief.” This would appear to limit the state’s ability to require citizens to produce documents or lift their skirts to prove their right to use the restroom of their choice.

Finally, the ACLU argues, the ballot initiative drastically understates the cost of the measure. The ballot language says it would cost the state $545,699 for renovations and signage to comply with the law. The language should note that the act also imposes an unfunded mandate on local governments, the ACLU says, and exposes them to a new source of litigation. In addition, the MLRPA could cost the state $1 billion in federal funds because of Title 9 violations, and it could cost billions more in lost business, the ACLU claims.

A truly accurate ballot statement, the ACLU says, would read something like this: “The Transgender Discrimination Act would bar transgender people from using any public facilities (such as restrooms and locker rooms) that match their gender identity. It would prevent schools and other government entities from allowing transgender people to use these restrooms at all times, regardless of state laws, local non-discrimination ordinances, or individual circumstances. It would further allow individuals to sue the government for emotional distress and attorney fees if they come in contact with a transgender person of the same gender identity in any such facility.”

If you still want to sign the petition after all of that, go right ahead. Just remember that President Trump last week tweeted out a ban on transgender people from serving in the military. Whether his tweets indicated a serious policy change or just early-morning dyspepsia is open to interpretation.

But know this: Anybody who is willing to put on a uniform, give up safety and comfort, and face hostile fire in order to protect my private parts is welcome to use my restroom any time. No questions asked.

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