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Montana Private Facilities in Public Schools and Government Buildings Restricted to Person's Sex Initiative (2018)
| Montana Private Facilities in Public Schools and Government Buildings Restricted to Person's Sex Initiative | |
|---|---|
 | |
| Election date November 6, 2018 | |
| Topic LGBT issues | |
| Status Not on the ballot | |
| Type State statute | Origin Citizens |
The Montana Private Facilities in Public Schools and Government Buildings Restricted to Person's Sex Initiative (#183) was not on the ballot in Montana as an initiated state statute on November 6, 2018.
Supporters needed to collect and submit 25,468 valid signatures by June 22, 2018, in order to qualify the measure for the 2018 ballot. Signatures must be equal to 5 percent of the qualified electors in each of one-third (34) of the state's legislative districts. As of June 29, 2018, the Secretary of State had tallied only 8,079 signatures submitted by proponents of the initiative, which means the measure did not qualify for a place on the November ballot.[1]
The measure would have required individuals to use the private facilities, including changing facilities, locker rooms, restrooms, and shower rooms, in public schools and government buildings designated for an individual's biological sex, as determined by anatomy and genetics, at the time of birth.[2]
Text of measure
Ballot statement
The ballot title was as follows:[2]
| “ | I-183 requires all state and local government entities, including schools and universities, to designate “protected facilities” in government buildings – such as locker rooms, changing rooms, restrooms, and shower rooms – for use by members of only one sex. It defines “sex” as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.” A person may not use protected facilities that are not designated for that person’s sex. The government may provide an accommodation, such as single occupancy facilities, for special circumstances upon request. The measure requires the government to “ensure that each protected facility provides privacy from persons of the opposite sex.” It authorizes people to sue governmental entities and recover monetary damages for violations. The State of Montana will spend an estimated $545,699 in general fund money in the first four years to renovate facilities and provide proper signage for protected facilities. Long-term costs and legal fees for state and local governments, K-12 schools, and universities could be substantial, but are uncertain..[3] |
” |
Full text
The full text of the initiative is available here.
Support
The Montana Family Foundation developed the ballot initiative.[4] The group stated the following reason for the initiative on its website:[5]
| “ | The state has a duty to protect the privacy, safety and dignity of all people when they’re using the locker room in a public place like a school. It’s just common sense that high school girls shouldn’t be forced to shower next to boys.
In May 2016, the federal government tried to direct all schools to let male students into the girls’ locker rooms if they identify as girls. Now, Montana has responded with the Montana Locker Room Privacy Initiative![3] |
” |
Montanans for Locker Room Privacy is sponsoring this initiative.[6]
Opponents
Free and Fair Montana is leading the campaign in opposition to Initiative 183. Free and Fair Montana is a coalition of Montana organizations, including:[7]
- Montana Human Rights Network;
- Montana Women Vote;
- Forward Montana;
- Planned Parenthood Advocates of Montana;
- Montana Gender Alliance; and
- ACLU of Montana.
Arguments
Free and Fair Montana argued that Initiative 183 would:[8]
- Force people to use public accommodations like restrooms and locker rooms that align with the gender on their original birth certificate instead of the gender by which they live and identify;
- Make work, school, and recreation unsafe for transgender Montanans;
- Put local government and state agencies at risk of expensive, unnecessary lawsuits;
- Fail to further protect anyone from assault or rape, as these things are already illegal in Montana; and
- Jeopardize privacy by forcing people to prove their gender to anyone who requests to see paperwork before you enter a public facility.
Representative Kathy Kelker (D) said: “Transgender individuals have been using bathrooms in Montana for generations, and there’s never been an incident. Never. It’s a nonissue.”[9]
Chad Griffin, president of the Human Rights Campaign said: "Over the last 18 months, we’ve seen how these attacks fail when informed voters see through the smears. Anti-trans attacks didn’t work in North Carolina — just ask Pat McCrory, the first North Carolina governor to lose re-election in more than 150 years. They didn’t work in Virginia — ask Bob Marshall, who lost his seat to trailblazing transgender state legislator Danica Roem last November. And now, these attacks have failed in Anchorage, too. We have to continue to lift up the voices of transgender advocates and their families to inoculate voters against the lies our opponents spread. We have to organize and mobilize. We have to build coalitions and stand together. If we do that, we can win. And as we continue to prove — from North Carolina, to Virginia, to Alaska — if you come for us, we will come for you on Election Day.”[10]
Michael FitzGerald, CEO of Montana-based software company Submittable, wrote the following in the Montana Standard:[11]
| “ |
Initiative 183, a new proposal from the “Montana Family Foundation,” authorizes people “to sue governmental entities and recover monetary damages” if they decide while sharing a bathroom or locker room with you that you are not the “right” gender for that facility. The initiative is a goldmine for frivolous lawyers, a financial black hole for us taxpayers, and a dismissal of the basic human right to relieve oneself without the government looking down your pants. ... Institutionalized discrimination will undercut all of [Montana's] strengths, sending the message that Montana is small-minded and unsafe for LGBTQ people and that the state government embraces bigotry. When North Carolina cooked up a similar scheme (HB2), they immediately lost millions of dollars in contracts and employment opportunities and, as a result, rolled the law back within two years.[3] |
” |
Campaign finance
| Total campaign contributions: | |
| Support: | $175.00 |
| Opposition: | $156,121.43 |
One committee was registered to support this initiative: Montanans for Locker Room Privacy. The committee had raised $175 in cash donations.[12]
One committee was registered to oppose this initiative: Free & Fair Montana (No on I-183). The committee reported a total of $156,121.43 in contributions—$100,200.00 in cash donations and $55,921.43 in in-kind contributions. The ACLU of Montana and ACLU National had provided 72 percent of the total contibutions to the committee.[12]
Support
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Opposition
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Top donors
| Donor | Cash | In-kind | Total |
|---|---|---|---|
| ACLU National | $100,000.00 | $285.53 | $100,285.53 |
| Lake Research Partners | $0.00 | $22,950 | $22,950 |
| ACLU of Montana | $12,106.20 | $0.00 | $12,106.20 |
| Montana Human Rights Network | $5,636.54 | $0.00 | $5,636.54 |
Methodology
To read Ballotpedia's methodology for covering ballot measure campaign finance information, click here.
Path to the ballot
The initiative was filed with the secretary of state's office on May 10, 2017. The initiative was approved for legal sufficiency by the attorney general on July 26, 2017.[13]
Supporters needed to collect and submit 25,468 valid signatures by June 22, 2018, in order to qualify the measure for the 2018 ballot. Signatures must be equal to 5 percent of the qualified electors in each of one-third (34) of the state's legislative districts. As of June 29, 2018, the Secretary of State had tallied only 8,079 signatures submitted by proponents of the initiative, which means the measure did not qualify for a place on the November ballot.[14]
Lawsuits
ACLU of Montana v. Montana
| Lawsuit overview | |
| Issue: Ballot language; whether the attorney general's ballot statement was misleading and masked the initiative's intent and whether the fiscal statement was misleading | |
| Court: Montana Supreme Court | |
| Ruling: Ruled in favor of plaintiffs, requiring Attorney General Tim Fox to rewrite the ballot statement | |
| Plaintiff(s): ACLU of Montana | Defendant(s): State of Montana (represented by Attorney General Tim Fox) |
| Plaintiff argument: The ballot statement was misleading and prejudicial and the fiscal statement was insufficient. | Defendant argument: The ballot statement was legally sufficient, true and impartial, and fairly stated and the fiscal statement was sufficient. |
Source: Montana Supreme Court
On July 31, 2017, the ACLU of Montana filed litigation against the state of Montana in the Montana Supreme Court, contending that Attorney General Tim Fox's (R) ballot statement for the initiative was misleading and prejudicial and the fiscal statement was insufficient. The ACLU of Montana provided four reasons behind the group's argument regarding the ballot statement:[15]
| “ | 1. The ballot statement obscures the primary and most controversial function of the initiative: the exclusion of transgender people from gender-appropriate facilities.
2. The ballot statement creates prejudice in favor of the initiative by describing it as protective of privacy. 3. The first sentence of the ballot statement inaccurately implies that the proposal’s requirements would only apply to one facility in each government building. 4. The ballot statement does not acknowledge the extent of government liability the initiative creates and also fails to note that the initiative eliminates local non-discrimination ordinances.[3] |
” |
The ACLU of Montana also argued that the fiscal statement for the initiative was misleading and incomplete. According to the ACLU of Montana, the fiscal statement (1) failed to note how long the initiative's hard fiscal impacts will be; (2) failed to note that indeterminate fiscal impacts exist; (3) failed to note long-term fiscal impacts; and (4) failed to note the initiative's technical defects.[15]
Attorney General Tim Fox, representing the state of Montana, responded to the plaintiff's argument, contending that the ballot statement was legally sufficient, true and impartial, and fairly stated what the initiative proposes. Attorney General Fox argued that the ACLU of Montana's proposed changes to the ballot statement would create prejudice against the initiative. He said the terms that plaintiffs want to use "are not mentioned in I-183 or even defined in state law." Regarding the fiscal statement, Attorney General Fox stated, "The fiscal statement adequately expresses the identifiable costs of the initiative in an impartial manner and should move forward."[16]
On August 29, 2017, the justices of the state Supreme Court rejected a petition from the initiative's support committee, Montanans for Locker Room Privacy, to intervene in the case. Chief Justice Mike McGrath said the petition to intervene was rejected because the court was not addressing the initiative's merits, but whether the attorney general's office was legally sufficient.[17]
The Montana Supreme Court unanimously ruled in favor of the plaintiffs on September 19, 2017. The court said the ballot statement and fiscal statement were deficient in five respects:[18]
- The ballot statement did not include the initiative's definition of sex, which the court said "impedes voters from understanding how the initiative may apply to transgender and intersex individuals."
- The ballot statement did not use a broad enough definition of government entities, which the court said needs to include local governments and public universities.
- The ballot statement read, "[the initiative] requires government entities to designate a protected facility in a government building or public school for use only by members of one sex." The court said that the sentence "would lead voters to believe that the initiative only applies to one "protected facility" at any government building, rather than all of them, as the text of the initiative requires."
- The ballot statement did not "clearly inform the reader that the initiative authorizes people to sue government entities and to recover monetary damages for violations of the initiative's provisions."
- The fiscal statement needed to reflect that "long-term costs, and costs to local governments, K-12 and college-level educational facilities, and legal fees are uncertain and are not included."
Justice Beth Baker provided a 123-word example of a possible rewrite for the ballot statement.[18] The following table compares Attorney General Fox's original ballot title and Justice Baker's proposed ballot title.
| AG Tim Fox's original ballot statement | ACLU of MT's proposed ballot statement | Justice Baker's proposed ballot statement |
|---|---|---|
| I-I-183 requires government entities to designate a protected facility in a government building or public school for use only by members of one sex, and prohibits persons from using a protected facility other than the facility that is designated for that person's sex. Protected facilities under this proposal include, but are not limited to, locker rooms, changing rooms, restrooms, and shower rooms. This proposal allows a governmental entity to provide an accommodation such as single occupancy facilities upon a person's request due to special circumstances. I-183 also requires governmental entities, including public schools, to ensure that each protected facility provides privacy from persons of the opposite sex and authorizes civil penalties if a governmental entity fails to provide such privacy. | I-183 requires any government entity, including public schools, to prohibit people from accessing certain facilities if the facility’s sex designation does not match the sex assigned to the person at birth based on genetics and anatomy. It would prohibit government entities from permitting transgender persons and those with genetic or chromosomal differences affecting sex from using facilities such as restrooms, locker rooms and changing facilities in accordance with their gender identity. It would authorize private lawsuits for money damages against government entities if an individual claims to have experienced emotional distress after having shared a facility with a transgender person. Single occupancy facilities could be provided upon request in special circumstances. I-183 would also invalidate local nondiscrimination law that protects transgender people from discrimination in these spaces. | This measure requires all state and local government entities, including schools and universities, to designate "protected facilities" in government buildings — such as locker rooms, changing rooms, restrooms, and shower rooms — for use by members of only one sex. It defines "sex" as “a person's immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth." A person may not use protected facilities that are not designated for that person's sex. The government may provide an accommodation, such as single occupancy facilities, for special circumstances upon request. The measure requires the government to "ensure that each protected facility provides privacy from persons of the opposite sex." It authorizes people to sue governmental entities and recover monetary damages for violations. |
Reactions
- Alex Rate, the legal director of the ACLU of Montana, responded to the ruling, saying, "The Supreme Court has ensured that when Montanans vote on I-183 and decide whether or not to legalize discrimination, they will be informed about the societal and economic costs for regulations that target our transgender friends and neighbors."[19]
- Jeff Laszloffy, president of the Montana Family Foundation, stated, “This is a big win. Our initiative can still move forward, and Montanans who have already signed the petitions won’t have their voices ignored."[20]
Hobaugh v. Montana
| Lawsuit overview | |
| Issue: Substantive constitutionality; whether the initiative violates fundamental rights of transgender people to privacy, dignity, due process, as well as the right to pursue basic necessities, acquire property, and seek safety, health, and happiness | |
| Court: Montana Eighth Judicial District Court, County of Cascade | |
| Plaintiff(s): ACLU of Montana | Defendant(s): State of Montana (represented by Attorney General Tim Fox) |
| Plaintiff argument: Initiative 183 is unconstitutional because it denies transgender people equal protection under the law and violates their rights to privacy, dignity, the pursuit of life's basic necessities, and due process under the Montana Constitution. | Defendant argument: Court review of a proposed ballot measure before it is officially certified is unprecedented and infringes on the right of Montana residents to participate in direct democracy. |
Source: ACLU of Montana Hobaugh v. Montana Legal Documents
On October 17, 2017, the ACLU filed litigation in the Montana Eighth Judicial District Court against the state of Montana on behalf of eight plaintiffs. The plaintiffs allege that initiative 183 would “harass, humiliate, and harm transgender Montanans.”[21][22][23]
Attorney General Tim Fox filed a brief in support of a motion to dismiss the complaint, which argues that court review of a proposed ballot measure before it is officially certified is unprecedented and infringes on the right of Montana residents to participate in direct democracy. Fox also argues that the plaintiffs cannot show that there is "actual, present controversy which is not hypothetical, speculative, or illusory" and that the complaint should be dismissed because "I-183 is not even statistically likely to qualify for the general election ballot on or near the deadline of July 20, 2018."[24]
Reactions
- Jeff Laszloffy, president of the Montana Family Foundation, stated, “The Montana Locker Room Privacy Act is about protecting privacy, safety, and dignity for all Montanans. Males and females use different locker rooms. This isn’t some new idea, it’s just common sense. The ACLU should permit the people of Montana to vote. That’s supposed to be how self-government works.”
- Gabriel Arkles, senior staff attorney for the ACLU’s LGBT and HIV Project stated, "When trans people can’t use the restroom that matches our gender … we cannot be a part of public life. It keeps you from going to work school or even just to dinner with your friends."
Related measures
| LGBT issues measures on the ballot in 2018 | |
|---|---|
| State | Measures |
| Massachusetts | Massachusetts Question 3: Gender Identity Anti-Discrimination Veto Referendum (2018)  |
See also
Footnotes
- ↑ Billings Gazette, "Transgender bathroom initiative about 15K signatures short of qualifying for Montana ballot," accessed June 29, 2018
- ↑ 2.0 2.1 Montana Secretary of State, "Initiative 183," accessed July 31, 2017
- ↑ 3.0 3.1 3.2 3.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Bozeman Daily Chronicle, "Montana initiative would limit transgender use of bathrooms," June 22, 2017
- ↑ Montana Family Foundation, "Locker Room Privacy Initiative," accessed September 20, 2017
- ↑ Locker Room Privacy, "About," accessed May 11, 2018
- ↑ Free and Fair Montana No on I-183, "Our Coalition" accessed April 18, 2018
- ↑ Free and Fair Montana No on I-183, "About the initiative" accessed April 18, 2018
- ↑ Helena IR, "Opponent on proposed ballot initiative policing transgender bathroom use: 'It's a nonissue'," accessed April 18, 2018
- ↑ Metro Weekly, "HRC’s Chad Griffin to lawmakers: “If you come for us, we’ll come for you on Election Day," accessed April 19, 2018
- ↑ Montana Standard, "Guest view: I-183 is a bigoted solution to a problem we don’t have," accessed June 26, 2018
- ↑ 12.0 12.1 State of Montana, "Campaign Electronic Reporting System," accessed June 4, 2018
- ↑ Montana Secretary of State, "Proposed 2018 Ballot Issues," accessed June 22, 2017
- ↑ Billings Gazette, "Transgender bathroom initiative about 15K signatures short of qualifying for Montana ballot," accessed June 29, 2018
- ↑ 15.0 15.1 Montana Supreme Court, ACLU of Montana v. Montana, July 31, 2017
- ↑ Montana Supreme Court, ACLU of Montana v. Montana, September 19, 2017
- ↑ Billings Gazette, "Anti-transgender initiative sponsors rebuffed by high court," August 30, 2017
- ↑ 18.0 18.1 Montana Supreme Court, ACLU of Montana v. Montana, September 19, 2017
- ↑ Metro Weekly, "Montana Supreme Court tells state to review anti-transgender measure’s ballot statement," September 20, 2017
- ↑ Montana Family Foundation, "MT Court: Locker Room Privacy Initiative Goes Forward!" September 20, 2017
- ↑ NBC News, "Three transgender-rights cases to have their day in court this week," accessed May 22, 2018
- ↑ ACLU, "HOBAUGH V. MONTANA - COMPLAINT," accessed May 22, 2018
- ↑ ACLU, "Cases: HOBAUGH V. MONTANA," accessed May 22, 2018
- ↑ ACLU, "Brief in Support of Motion to Dismiss," accessed May 22, 2018
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