The Montana state capitol pictured after a late-night Senate vote on Jan. 9, 2025. (Micah Drew/Daily Montanan)
With Republican legislators in support and criticism from Democrats, the House Judiciary committee voted Monday on party lines to approve a bill that defines sex — similar to one from 2023 that’s in court — and tie it to bathroom use in public spaces.
Democrats raised multiple issues, including cost, the apparent lack of an accurate fiscal note despite a high estimated cost from a similar bill, and the lack of a legal analysis by legislative staff.
Several Democrats and a couple of Republicans spoke before Rep. Caleb Hinkle, D-Belgrade, called the question to move onto the vote.
Republican Rep. Braxton Mitchell, R-Columbia Falls, said he wouldn’t “bow down to the woke pressure.” Republican Rep. Tom Millett, R-Marion, said he had spent eight hours during the weekend mulling the legislation.
The bill would “reaffirm the longstanding meanings of the terms ‘sex,’ ‘male,’ and ‘female’ in law” and would cover correctional centers, public buildings, schools and domestic violence programs.
Millett said he concluded the bill was “a good faith attempt” to protect women and young girls from being harassed and intimidated and possibly experience violence from “biological men who think they can just barge into restrooms” under pretense they are female.
He said places such as Starbucks are making locked restrooms that anybody can use the norm, and he believes the bill will influence other organizations to do the same.
“This is nudging these entities to start doing this kind of thing, and I think that’s a good thing,” Millett said.
Democrats raised numerous concerns, including voting prior to a legal analysis or complete financial picture, along with enforcement. The bill was heard the previous Friday.
Rep. SJ Howell, D-Missoula, said laws already exist to protect people from assault and harassment “in any context,” including in bathrooms.
Plus, the language of the bill would make it illegal to simply have an “encounter” in a bathroom, but Howell said people encounter each other in many different contexts, “including bathrooms.”
Howell said it’s also clear the covered entities, such as cities and schools, would do the enforcement, and that means they might find it easier to have either single-use bathrooms or none at all given potential legal and financial liabilities.
Otherwise, there’s no way to ensure someone won’t “encounter” a person they perceive is in the wrong bathroom, Howell said. The bill represents an “absolutely untenable” intrusion into people’s private lives, they said.
“Nobody should have to produce a birth certificate to use the bathroom,” Howell said. “Nobody should have to take a blood test to use the bathroom. This is ridiculous.”
“What we should do is hold people accountable for their behaviors. We can and should do that. This bill doesn’t do this at all.”
Rep. Ed Stafman, D-Bozeman, said no one from the public universities called out bathrooms as a problem. Stafman also said he believes the bill will meet the same fate as one from a previous session that tried to regulate guns on Montana University System campuses — in a unanimous vote, the Montana Supreme Court declared the bill unconstitutional and said the Board of Regents has that authority.
“This one is clearly unconstitutional, infringing on the university’s authority,” said Stafman, who lives near Montana State University in Bozeman.
Rep. Tom France, D-Missoula, agreed the bill will lead to litigation, and he said the committee should see a legal note, or analysis from its legal staff, before taking up a vote. France also said the fiscal note was “hurriedly put together.”
The fiscal note said the bill would cost $0 to implement, but Rep. Alanah Griffith, D-Big Sky, said a similar one from a previous session estimated the cost at $1.8 billion, which Griffith estimated could be nearly $3 billion now given construction costs.
Rep. Jed Hinkle, D-Belgrade, acknowledged the bill could be problematic to enforce. However, Hinkle said women are in vulnerable places in bathrooms, and he believes the bill would dissuade “perverts” from trying to watch them.
“Maybe there could be some troubles in proving and prosecuting, but when I look at this bill, I see it as a deterrent,” Hinkle said.
France discussed the same problem of prosecution. He said the bill indicates law enforcement officers can’t enforce the bathroom restriction, so it’s turning to “the very subjective judgements of individuals, and individuals may have an ax to grind.”
At the hearing, opponents had suggested the bill would open the door to “vigilante justice.”
Rep. Zooey Zephyr, D-Missoula, said it’s important to note the bill deals with the perception of danger, but not actual danger. Zephyr is transgender and said the bill would affect her personally.
“I have been happily using the women’s restroom in this building throughout my tenure without issue,” Zephyr said.
The bill passed 12-8 in committee and heads to the House floor.