Tension Builds in Transgender Policy Debate in Montana (2023)

On April 13, Democratic Rep. Zooey Zephyr was sitting in the basement of Montana’s Capitol building reflecting on her time as one of the state’s first two openly transgender legislators. She wondered whether she needed to display more anger over anti-LGBTQ+ legislation, or whether she should focus on promoting more of what she called “transgender joy.”

“The thing that keeps me up at night is, am I doing a good job for my community?” Zephyr said.

Five days later, the anger bubbled over as Zephyr spoke against amendments from Republican Gov. Greg Gianforte to Senate Bill 99, which would prohibit minors with gender dysphoria from receiving certain medical and surgical treatments. Zephyr said the lawmakers who voted for the measure should be ashamed.

That prompted Republican Majority Leader Sue Vinton to speak. “We will not be shamed by anyone in this chamber,” Vinton said.

“Then the only thing I will say is: If you vote yes on this bill, and yes on these amendments, I hope the next time there’s an invocation, when you bow your heads in prayer, you see the blood on your hands,” Zephyr said in response.

Later that day, the Montana Freedom Caucus, a conservative group of lawmakers, released a statement calling for Zephyr’s censure for using “inappropriate and uncalled-for language.” The release and a Freedom Caucus post on Twitter used male pronouns to refer to Zephyr, leading to fresh outrage by LGBTQ+ supporters accusing Republicans of deliberately misgendering her.

Two days later, Republican House Speaker Matt Regier would not allow Zephyr to speak during a debate on another bill. Regier said it was because she had committed a breach of decorum.

With two weeks to go in the legislative session, Republican lawmakers, who are in the majority, are sponsoring anti-LGBTQ+ bills. There are at least four related measures, including the bill to ban gender-affirming care for minors.

Many similar bills are being heard in conservative-led statehouses across the U.S. The American Civil Liberties Union has tracked more than 460 anti-LGBTQ+ bills so far in 2023 legislative sessions.

Back in the Capitol on April 13, Zephyr stopped at a storytelling event presented by drag performers on the second floor. Parents, children, and supporters sat in folding chairs and on the floor while drag performers read stories.

Zephyr was visibly emotional. A short time later, former Democratic lawmaker Moffie Funk, who also attended the storytelling event, approached Zephyr to thank her for her work.

“I have just been so impressed to see the way Rep. Zephyr has handled questions on the floor, just keeps her calm, stays cool, and is so powerful in her words and so powerful in the way she represents her community and Montana,” Funk said.

Before the session, Zephyr said she had a goal of changing at least one person’s heart on LGBTQ+ issues.

One lawmaker who typically votes in favor of anti-transgender bills told Zephyr about having read something about her in a far-right blog and said, “That doesn’t sound like Zooey; she wouldn’t do that.” The lawmaker, whom Zephyr didn’t name, subsequently stopped reading the blog.

Proponents of measures like SB 99 and House Bill 359, a bill that would have banned minors from drag shows and would have banned events like drag storytelling in public schools or libraries, frame the legislation as necessary to protect children.

In a small victory for LGBTQ+ supporters, HB 359 was amended to remove references to drag performers and now would prohibit minors from attending “adult-oriented” shows.

Democratic Rep. SJ Howell, who is transgender and nonbinary and uses the pronouns “they” and “their,” has been working at the Capitol for a decade, first as a lobbyist and now as a lawmaker representing Missoula. In all their work, Howell said, it’s very clear that relationships matter. Progress is a long game, and it may take years to pass legislation that promotes the rights and recognition of transgender and nonbinary people, Howell said.

One thing that could hinder that progress is the national debate over anti-LGBTQ+ policy proposals.

Erin Reed, who describes herself as a queer writer and content creator, has been tracking the LGBTQ+ bills nationwide and is also Zephyr’s partner of almost a year.

Four years ago, the debate playing out in statehouses was over transgender rights in sports, Reed said, but that’s shifted. Now, a third of the bills target health care — like gender-affirming hormone therapy, mostly related to minors — and the rest focus on banning drag shows or the use of preferred pronouns and bathrooms, or targeting the rights of transgender people in insurance coverage and workplace protections.

But beyond the flood of anti-LGBTQ+ bills, at least 15 states have passed LBGTQ+ protections, Reed estimated.

Howell said it’s challenging being a state representative trying to focus on Montana when so much focus has been on this national issue.

Personally, Howell said, they came to the legislature to build relationships and make good policy, and they see many of their colleagues as friends.

“When the mutual respect isn’t present, it can be deeply frustrating and harmful, and we can do better as a body,” Howell said.

Republican Rep. Neil Duram sits between Zephyr and Howell on the House Judiciary Committee, which has heard all the LGBTQ+ bills this session. He said having both in the legislature better represents Montana.

“If it was just me, and 99 other people like me on the House floor, we may not set the best policy for the people of Montana,” Duram said.

Duram spoke during a House floor session discussing House Bill 361, which would allow classmates to refer to a transgender student by their birth name or gender assigned at birth, unless it crossed into bullying. He said he’s enjoyed getting to know Judiciary seatmate Zephyr and that he’ll make sure people aren’t “inflicting bullying behavior.”

Duram voted for HB 361. He said his decision was encouraged by his community.

“And, ultimately, that’s where my conscience is going to sit,” he said.

On the morning of April 13, Howell and Zephyr were hearing testimony before the House Judiciary Committee on a bill that would define sex in Montana law, Senate Bill 458. The vibe in the room felt heavy.

Sen. Carl Glimm, sponsor of SB 458, said the bill seeks to define the terms “sex,” “male,” and “female” in state law. Glimm said the bill was necessary because people conflate sex and gender and maintained the bill wasn’t about gender fluidity or expression.

“Gender is obviously something different than biological sex. Biological sex is immutable and that means you can’t change it, and there’s only two biological sexes,” Glimm said. “You may claim to be able to change your gender or express your gender in a different way, but you can never change your biological sex.”

LGBTQ+ advocates, like the Montana Human Rights Network, say that by defining people as simply male and female, the bill would legislate “transgender, nonbinary, and intersex people out of existence.” The Montana Human Rights Network said the definitions used in SB 458 were based “on an unscientific and archaic understanding of basic biology.”

About an hour after the hearing, people gathered outside the Capitol in an April snowstorm for a drag show.

Performers lip-synced for a crowd ranging from kids to college students to retired folks who were waving rainbow-colored flags and carrying umbrellas.

As “Rise Up” by Andra Day played in the background, Katie Fire Thunder said she came to the drag show from Bozeman to show her allyship with the LGBTQ+ community.

Fire Thunder called this session’s anti-LGBTQ+ bills “disgusting,” and said they don’t represent Montana or what young people care about. But having both Zephyr and Howell serving in the Capitol has made a major difference, Fire Thunder said.

“When things are really hard and there’s all these hateful people, they’re a little glimmer of hope,” Fire Thunder said.

Kole Burdick, 20, also of Bozeman, said it’s important to “uplift queer people and show moments of queer joy,” and commended Zephyr and Howell for their work.

“I think they’ve been working really hard to protect our community and keep our community safe, and I really appreciate them for that,” Burdick said.

Keely Larson is the KFF Health News fellow for the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Newspaper Association, and KFF Health News. Larson is a graduate student in environmental and natural resources journalism at the University of Montana.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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