Proponents are preparing to tackle “hateful attacks” in the 2023 legislature

For the second straight legislative session, LGBTQ rights advocates are preparing to protest a law restricting transgender healthcare, as well as other proposals they say would discriminate against and further stigmatize LGBTQ people.

This session’s brewing conflict could mimic the dynamics of the 2021 legislative session, when conservative Republicans introduced a series of bills to limit medical care for transgender minors and the participation of student-athletes, a policy opposed by a diverse coalition of interest groups . Two bills dealing with health treatments for gender dysphoria were eventually defeated by moderate Republican and Democratic lawmakers. The law, which bans transgender athletes from playing on sports teams that match their gender identity, was signed into law by Gov. Greg Gianforte but later ruled unconstitutional by a district judge because it applied to colleges and universities.

As the 2023 legislative session nears the end of its first month, the political feud over transgender rights and other LGBTQ issues appears to be playing out once again under the Capitol dome. Trans advocates, human rights groups and medical providers say they are pursuing a number of anti-LGBTQ bills but currently have their sights set on Senate Bill 99, sponsored by Sen. John Fuller, R-Kalispell, and scheduled for the first hearing on Friday.

“Across Montana, across the political aisle, the people do not want these hateful attacks to be perpetrated against the community that lives and works in Montana and communicates with everyone,” said Rep. Zooey Zephyr, D-Missoula, on a press conference on Tuesday. Zephyr and fellow student Rep. SJ Howell, D-Missoula, are Montana’s first openly transgender lawmakers.

If enacted, SB 99 would ban gender-affirming medical care for transgender minors, including puberty-delay treatments, estrogen and testosterone hormone therapies, and a variety of surgeries mostly reserved for adults. The bill would also prohibit the use of public facilities and funds, including the state’s Medicaid program, to promote or provide drug or surgical treatment to minors for gender dysphoria.

Other sections of the bill would prevent public officials, property and facilities from advocating or promoting social transition, drugs and surgery. The social transition, which may involve the use of select names, pronouns, hairstyles and clothing, is described in part in Fuller’s bill as “changing a minor’s preferred pronouns or clothing.”

“Across Montana, on the other political side, people do not want these hateful attacks to be perpetrated against the community that lives, works and communicates with everyone in Montana.”

Rep. Zooey Zephyr, D-Missoula

Nationwide, medical associations have issued best practice guidelines and recommendations for considering health care options for transgender youth. Patients, families, and providers are encouraged to work with multidisciplinary teams of physicians to consider age-appropriate interventions for gender dysphoria, such as reversible puberty blockers or adolescent hormone therapy. Transgender health experts and researchers have found that lack of access to gender-affirming treatment and social acceptance can negatively impact mental health in an already disproportionately vulnerable population.

Legal records show that SB 99 was originally intended to be heard by the Senate committee dealing with public health proposals. Speaking to the Montana Free Press in January, Fuller said he requested the bill be referred to the Senate Judiciary Committee, in part because he sees the bill as more than “a health issue” and because the latter committee meets in a larger space with more space for personal references.

In comparison to the bills he introduced at the last meeting, Fuller noted that SB 99 would not impose criminal penalties on physicians who provide gender-affirming treatment to minors. Rather, the bill states that health care providers who provide medical or surgical treatment to minors would engage in “unprofessional conduct” and face at least a year’s suspension from practicing medicine or providing health care services, a disciplinary measure currently available within the Act is the responsibility of the examination board for doctors.

The bill also opens a 25-year liability window for civil lawsuits against healthcare providers who perform gender confirmation medical or surgical treatments on minors, beginning when they turn 18, “if the treatment or the after-effects of the treatment result in injury, including physical, psychological , emotional or physiological harm.” A civil case could also be initiated within four years of the “discovery” of an injury to a person related to prior treatment, the bill says.

Fuller said the language of the bill, which refers to public funds, employees and facilities, is also different from his 2021 proposals and is intentionally “non-specific”.

“Their goal is to stop using public money for these types of procedures in general,” he said.

At Tuesday’s press conference, the president of Montana’s chapter of the American Academy of Pediatrics, Dr. Lauren Wilson said her organization opposes SB 99, as does the Montana Medical Association, Montana Psychiatric Association, Montana Association of Pediatric Psychiatrists, Montana Primary Care Association, Montana Academy of Family Physicians, Montana Hospital Association, and several other medical organizations.

While SB 99 remains a major focus, LGBTQ advocates are also pursuing other bills and draft proposals. One of those bills, House Bill 234, would ban schools and museums from providing children with broadly defined “obscene” material, which some opponents fear would be used to single out LGBTQ-affirming books and curriculum. Another unenacted proposal, LC 1471, would ban drag performances in schools and libraries, which the law describes as events at which an individual “presents a gender identity distinct from the sex assigned to the performer at birth using clothing, makeup, or other physical features, and sings, lip-syncs, dances, or otherwise performs for entertainment to appeal to a lustful interest.

In Montana and nationwide, Zephyr said, such bills arise “out of ignorance, fear, but also out of hatred.”

“Whether it’s bills targeting our access to life-saving health care, whether it’s categorizing our existence against ‘mere interest’ and trying to ban children from dealing with us, or books about our… Existing under the guise of protection prohibits children,” she said. “We see these bills raring to go in the legislature, in our hearings and on hold.”

Zephyr and Howell sit on the House Judiciary Committee, which is likely to debate SB 99 if it passes the Senate, and any other bills affecting LGBTQ rights. The committee’s minority vice chair, Rep. Laurie Bishop, D-Livingston, said her presence and perspective was a notable advantage that the Legislature did not have in the last session.

Another difference in the strategy from 2021, LGBTQ advocates said, is a deliberate effort to highlight examples of transgender people thriving and finding happiness because of access to health care, community affirmation, and other resources in Montana. Educating lawmakers and transgender representation in the Capitol, they said, could give lawmakers a better picture of the community that the bills would impact.

“The most important factor in how someone feels about LGBTQ, and trans rights in particular, is whether they know members of the trans community,” said Shawn Reagor, director of equality and economic justice at the Montana Human Rights Network. “And so we understand the deep value of creating these relationships for lawmakers who will be making decisions about these specific bills.”

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