State lawmakers have reengaged over the past few weeks in an intense, multi-session debate involving the rights of transgender female athletes, advancing a proposal that would restrict access to women’s locker rooms, bathrooms and sports teams in Montana’s K-12 public schools to cisgender women.

House Bill 300 comes amid Republican-led efforts nationwide to bar transgender women from accessing a range of competitive sports and facilities that align with their gender identity, efforts that recently resulted in a formal prohibition across the entire NCAA. Proponents have characterized such actions as necessary to protect the safety and sanctity of women’s sports — adhering to a view that does not consider transgender women to be women —  while critics have decried such policies as discriminatory, politically motivated attacks on a vulnerable population of young people.

So far HB 300’s supporters in Helena have included Republican Gov. Greg Gianforte and the elected leader of Montana’s K-12 school system, GOP state Superintendent Susie Hedalen, as well as several national conservative policy groups including the Alliance Defending Freedom. Testifying before the House Judiciary Committee late last month, Hedalen characterized the proposal as protecting the future athletic and educational opportunities of young women in Montana. On the opposing end, both the ACLU of Montana and Bozeman-based nonprofit clinic Bridgercare urged lawmakers to resist the proposal as a far-reaching violation of individual rights, privacy and dignity.

The legislation passed the House on a straight party-line vote Feb. 6 and is scheduled for its first Senate committee hearing Thursday. 

During the discussion on HB 300, lawmakers have questioned the potential issues raised by past court rulings striking down adjacent laws from past legislative sessions. Perhaps the most direct comparison has been to 2021’s House Bill 112, a measure that applied similar restrictions as new, standalone language in state law. That bill’s higher education provisions were struck down by the Montana Supreme Court last year as an infringement on the constitutional authority of the Board of Regents.

Legislators on both sides of the aisle last month asked what bearing the high court’s decision might have on HB 300, given the proposal’s broad application to all educational institutions in the state. The answer they got from the Alliance Defending Freedom’s legal counsel was none, since the bill doesn’t create new law but rather alters existing laws defining discrimination that inform Board of Regents policies.

In committee, lawmakers also probed the ramifications of a Missoula district court ruling against the 2023 legislative session’s House Bill 458, which sought to define sex in Montana law as explicitly male or female. Attorneys from conservative-leaning organizations argued the decision had no bearing on HB 300 as the judge’s objection centered on the lack of clarity in the bill’s title. Even so, Democrats viewed HB 300 as an extension of that same effort to insert a stark binary view of human sexuality into Montana’s codebooks — one that Rep. SJ Howell, D-Missoula, told colleagues on the House floor ignores past evidence and testimony offered in the Legislature by doctors, scientists and intersex individuals

“The rich tapestry of humanity is a little more beautiful and diverse than we want to boil it down to black and white and put it on a page here,” Howell said. “To be honest, I think it’s an act of incredible hubris to think that the 100 of us in this room and friends know all there is to know about humanity and the universe and what God has created and what we have the intelligence to figure out about that creation.”

Howell speculated that HB 300 will wind up in the courts as well — if not for the “deeply inappropriate invasion of privacy” Howell argued would arise from attempting to confirm the sex of “every kid playing sports,” then for the potential breach of equal protection Howell felt it represented.

ACLU of Montana Deputy and Legal Director Alex Rate echoed that position to Montana Free Press this week, noting that Montana courts have, in the course of past legal challenges on the issue, upheld that constitutional protections trump state statute.

“Laws like this that discriminate against people on the basis of transgender status are going to be reviewed under the most exacting legal test the courts employ, which is strict scrutiny,” Rate said.

One additional legal factor at play in the debate over HB 300 is the shifting status of federal anti-discrimination law. Under former Democratic President Joe Biden, the definition of sex-based discrimination under Title IX was expanded to prohibit such discrimination on the basis of gender identity. Republican President Donald Trump campaigned last year on a promise to reverse that expansion, and on Feb. 5 signed an executive order barring transgender women from competing on women’s sports teams. 

The move quickly prompted the U.S. Department of Education to urge the NCAA to strip transgender women of previous athletic titles, awards and records. It was also lauded by statewide elected Republicans including Hedalen, who stated in a press release that the order reinforces Title IX’s guarantee of “fairness and equal opportunity for women in educational settings.”

That’s how HB 300’s sponsor, Rep. Kerri Seekins-Crowe, R-Billings, framed her proposal to colleagues in the House in recent weeks, arguing the bill would bring Montana schools in alignment with the latest federal interpretation of Title IX. 

Speaking with MTFP last week, Seekins-Crowe said her motivation in carrying HB 300 was strictly to protect access and opportunity for women athletes. And while she acknowledged that an individual embracing their transgender identity is a “big decision,” Seekins-Crowe indicated the conflict playing out in the Legislature now boils down to two different and diametrically opposed views of what is “truth.”

“One thing that we keep hearing is that we’re supposed to just kind of leave the transgender community alone because all they want is safety, comfort, privacy,” Seekins-Crowe told MTFP. “They don’t want people bullying them. They want the right to protection, equality. But I posit that women want the same thing. Women want safety, comfort and privacy. They don’t want to be bullied into acquiescence.”

As HB 300 debuts in the Senate this week, Seekins-Crowe added she’s confident the proposal will continue to advance toward Gianforte’s desk. Her prediction isn’t without precedent. Earlier this month, another of her bills cleared both chambers of the Legislature and now awaits the governor’s signature: House Bill 121, which would require strict enforcement of sex-segregation in bathrooms, locker rooms and dorms in public and some private facilities. 

The Senate Judiciary Committee is scheduled to hold the chamber’s first hearing on HB 300 on Feb. 20.