Photo by Steven Cordes on Unsplash
Inch by inch, day by day, and legal battle after legal battle, trans Montanans are dismantling the unconstitutional laws proposed by Republicans meant to destroy trans lives, and indeed, trans life itself.
Last week, they were able to let out a sigh of relief—for now. A Montana judge issued a preliminary injunction on HB 121, which would ban trans and intersex people from using gender-separated public facilities, such as bathrooms or changing rooms, that differ from their sex assigned at birth.
This decision follows a temporary restraining order (TRO) on the law from earlier this year, instituted after legal rights groups like the ACLU challenged it in court for violating Montanans’ right to privacy under the state constitution. A preliminary injunction is a more steadfast barrier—it means the law won’t take effect until after legal proceedings conclude, if ever.
The Attorney General for the State of Montana, like many anti-trans actors, is defending HB 121 using the thinly-veiled premise of “protecting women” from sexual violence. But the injunction filings indicate that the judiciary isn’t buying it.
“The State has not shown even a rational basis for the Act,” wrote Judge Shane A. Vannatta, who oversees a Montana District Court. “The State does not provide evidence of trans female offenses against [cis] women or evidence of offenses being committed in covered entities to support the necessity of immediate implementation of the Act.”
Instead, the court found that anti-trans bathroom bans do not protect women from harm. It only serves to stoke violence against trans women and cis women alike—everyone’s gender and sex becomes subject to public debate when these laws are put in place.
“Each individual observed walking into a restroom of a covered entity does directly and indirectly disclose that individual’s transgender or intersex identity, anatomy, and genetics,” the filing said. “All Montanans regardless of gender […] will not be subject to the prying eyes of others or to governmental snooping or regulation.”
Vannatta further notes that it is already illegal for people of any gender or sex to commit a sex crime, and that there is “no evidence” to support the notion that trans or intersex people “have a predisposition toward such offenses.”
He added that the state’s purported concerns were “disingenuous” and purely “conjecture.”
In reality, trans women—especially those of color—are more likely than any other demographic to be the victims of violent crime. And by using the law to force trans people to out themselves every time they use a public restroom, or to embolden self-deputized gender police, so-called “trans bathroom bans” create a greater risk of violence for everyone. There are countless stories of cis and trans people alike being accosted in bathrooms precisely because of the anti-trans panic these policies create.
The filing further concluded that trans women have been relentlessly targeted by the state government and are in dire need of protection. “Transgender Montanans have been subjected to such a history of purposeful unequal treatment and have been relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,” Vannatta noted.
The fight against HB 121 is not over, but State Representative Zooey Zephyr—who would be legally forced into the men’s room under the bill her colleagues passed—says she is hopeful.
“The Montana Supreme Court has been clear: every law that targets the trans community is a clear invasion by the government into the privacy of transgender people,” she told Erin in the Morning. “These laws are driven by animus against the community. I expect this law—like all laws driven by the anti-trans fervor—to be struck down by Montana’s courts.”
(Editor’s Note: For transparency, Erin in the Morning founder Erin Reed is the loving wife to the aforementioned Rep. Zooey Zephyr.)
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