Montana legislators advanced two anti-LGBTQ+ bills this week -- one a so-called religious freedom bill, another that would require transgender people to have surgery and obtain a court order before changing the gender marker on their birth certificates.
The state Senate Monday gave final approval to Senate Bill 215, the Religious Freedom Restoration Act, which says the state must show a compelling interest in "burdening the free exercise of religion." Opponents say the measure, which now goes to the Montana House, would provide a defense for anti-LGBTQ+ discrimination.
Democratic Sen. Bryce Bennett, who is gay, expressed strong objections to the bill during debate Saturday, Helena's Independent Record reports. "There's probably not a whole lot of people in the body who have a conversation when you roll up to a hotel with you and your partner and you have to decide, do we both go in or just one of us?" he said. "Because if they see us together, will they deny us the room? Will we be left to sleep in our car tonight? Every session I have to stand up and plead with you all to not allow for open and deliberate discrimination against a community that faces it daily."
In an earlier hearing on the legislation, he directly addressed its lead sponsor, Republican Sen. Carl Glimm. "This bill would allow people like ... me to be denied housing, to be kicked out of restaurants, to be denied health care, to be fired from my job, not because of something I did but simply because of who I am," Bennett said. "I want you to look me in the eyes and tell me why you deserve a life free of discrimination and people like me don't."
Supporters of the bill have defended it by saying it wouldn't give private businesses a license to discriminate but merely prevent the state from interfering with religious practices. However, when Glimm responded to Bennett, he admitted that religious beliefs could be used as a defense in lawsuits. "All this bill does is give an ability to use religion in the court of law, and those arguments that you are referring to would have to then be worked out in the court," Glimm told Bennett at the hearing.
The legislation is modeled on the federal Religious Freedom Restoration Act, enacted in 1993 to prevent the government from burdening private religious practices. But in recent years, several states have weaponized such bills against LGBTQ+ people, and they also could threaten members of minority faiths, single parents, people seeking access to contraception and abortion, and others. A high-profile example came in 2015 when Indiana, where Mike Pence was then governor, adopted a controversial RFRA, which after much public outrage had to be amended so it ostensibly wouldn't enable discrimination.
In the end, the Montana Senate approved its bill by a vote of 26-24, with five Republicans joining all Democrats in opposing it, according to the Independent Record.
Then Tuesday, the Senate gave final approval to the birth certificate bill by a margin of 26-23 and sent it to the House. Senate Bill 280 would reverse an action taken without legislative approval by Montana Department of Public Health and Human Services in 2017, allowing trans residents to receive a new birth certificate with an updated name and gender simply by submitting a signed affidavit, with no medical documentation or court order required.
Glimm, who introduced the bill, argued that the agency was wrong to put the policy into place without action by the legislature, the Montana Free Press reports. In a committee hearing last week, he called the measure "a reset," saying, "It brings us back to the way it was before."
Jeff Laszloffy of the anti-LGBTQ+ Montana Family Foundation made a similar argument at the hearing. "This was an incursion into the legislative process by a state agency," he said, according to the Free Press. "If the agency truly believes the policy and process surrounding birth certificates needs to be amended, then they can ask a legislator to bring a bill just like everyone else."
Glimm said the legislation was necessary to assure accurate collection of vital statistics, but Bennett found that argument specious. "I'm just going to be fully honest and say this is a pretty gross attack on transgender people," Bennett said. "I'm not going to let this committee for a half-second pretend that this is a statistics bill, because it's not. If it were, we'd have people from the Bureau of Statistics in here saying, 'We desperately need this information.' They weren't, because it's not important. The reason this bill is here is because people don't want transgender folks to have these rights."
Shawn Reagor, a lobbyist for the Montana Human Rights Network, also spoke against the bill, saying it would make life more difficult for trans Montanans. "Oftentimes, our ability to obtain a job, housing or public services and to even stay alive is contingent on our ability to maintain private, medically relevant information," he said. "Having a birth certificate that doesn't match your gender identity or how the world sees you is extremely dangerous."
Human Rights Campaign Associate Regional Campaign Director Cooper Reed issued a statement denouncing both bills: "Senate Bill 215 is a license to discriminate, the likes of what passed in 2015 in Indiana under then-Governor Mike Pence, that cost Indians taxpayers $365,000 in legal fees and $60 million in lost revenue to the state. This bill would undermine the rights of LGBTQ people, women, and people of faith. Montana legislators are prioritizing this dangerous and hateful legislation ahead of the COVID-19 relief Montanans desperately need, despite the severe economic, legal, and reputational consequences.
"Montana's birth certificate gender marker bill is not only unconstitutional, surveys show that denying or restricting transgender people's ability to correct their gender marker on official documents opens the door for harassment, verbal abuse, 'outing,' and discrimination. This legislation is completely unnecessary and adds new barriers to transgender residents obtaining accurate vital records. This only serves as an opportunity for legislators to wage the political fight against equality they have been fighting and losing for years, jeopardizing the safety and well-being of transgender people in the process. Montana has real problems. The State Senate should spend more time focused on passing relief to help Montanans and less time bullying transgender people."