Update: House Bill 361 passed the House Thursday, Feb. 16, on a party-line 66-32 vote, with two Republican representatives excused. It now moves to the Senate.
On Wednesday, there was a heated discussion among Montana House lawmakers regarding the safety and well-being of transgender, nonbinary, and two-spirit students in public schools, with a focus on respect and faith.
The discussion centered on House Bill 361, a measure brought by Rep. Brandon Ler, R-Savage, to establish that referring to a fellow student by a gender they do not claim or a birth name they no longer use — known as misgendering and dead-naming, respectively — is not legally discriminatory behavior. In his opening remarks, Ler framed the proposal as a protection of the free speech rights of children who view gender as strictly binary, an argument that gradually took shape during the bill’s initial appearance in committee last week.
Ler stated that the purpose of this bill is to grant our children in education the freedom to hold their own beliefs, without being compelled to adopt someone else’s beliefs.
Prior to its appearance on the House floor, HB 361 drew considerable opposition from educators and LGBTQ advocates who argued that it would undermine local school officials’ constitutional authority and result in increased bullying and harassment of transgender youth. The bill was amended to stipulate that schools can still discipline students whose behavior rises to the state’s definition of bullying. According to the Legislature’s latest report on public messaging for and against specific bills, HB 361 has generated 36 messages in support and 299 in opposition.
HB 361 passed its first House vote 66-34 Wednesday, with Republican Reps. John Fitzpatrick and Gregory Frazer opposing in concert with the full Democratic caucus. Prior to the vote, legislators on both sides of the aisle spent nearly an hour expressing their views. The first to rise was Rep. Zooey Zephyr, D-Missoula, who is transgender. She said that regardless of whether misgendering or dead-naming amounts to bullying, it still “causes harm to that individual.”
Zephyr expressed their view on HB 361, stating, “In my perspective, this is fundamentally discriminatory. The policy creates a situation where it would be permissible to repeatedly refer to a cisgender boy as a girl, whereas someone like me, a transgender girl, could be labeled as a boy. This establishes unequal standards solely based on a student’s transgender identity, which is a clear example of discrimination.”
Ten other House Democrats spoke against the bill, many claiming that it would negatively impact teachers’ ability to provide safe and affirming learning environments for their students. Rep. SJ Howell, D-Missoula, who is trans and nonbinary, argued that it’s “not our job as a Legislature” to tell local school officials how to teach students to treat each other with dignity and respect. Missoula Democratic Rep. Katie Sullivan raised questions regarding HB 361’s legality, noting that the U.S. Department of Education has determined that federal sex-based discrimination protections under Title IX include discrimination on the basis of gender identity.
Rep. Ed Stafman, D-Bozeman, offered a faith-based case for his opposition to the bill. He stated that in Judaism, disrespecting or embarrassing someone in public is “tantamount to wounding them or shedding their blood.” Passing HB 361, he said, would send a message to students that it’s OK to say whatever they want regardless of whether it hurts others.
Stafman objected, stating, “That goes against all the religious principles I’ve ever known.”
Across the aisle, supporters of Ler’s proposal characterized the issue as a matter of personal conviction and free speech. Rep. Mike Hopkins, R-Missoula, argued that respecting other people is a choice, not an obligation, and said compelling students to behave a certain way is a “flagrant violation” of their First Amendment rights. He clarified that those rights don’t extend to bullying or physical violence, but maintained that “force does not beget kindness.” Other supporters claimed the bill would protect students who mistakenly misgender or dead-name transgender peers from inappropriate disciplinary action.
“We’ve heard a lot about bullying, we’ve heard a lot about safety, about respect,” Majority House Leader Sue Vinton, R-Billings, said. “But I’m thinking about that 10-year-old that’s on the playground and inadvertently calls a classmate by the wrong name or wrong gender. Shouldn’t that person feel safe, too? Shouldn’t they be protected?”
That stance was echoed by House Speaker Matt Regier, R-Kalispell, who stood to offer his own view of HB 361. Bullying is “awful,” he said, but so too is the prospect of a Montana student being disciplined for exercising “their First Amendment right of free speech” — a prospect he claimed the bill would protect against.
The intensity of the debate on Wednesday was hinted at during a pre-floor session caucus meeting attended by House Republicans. Regier mentioned the previous week’s committee hearing on the bill and noted that there were efforts to evoke emotions. He encouraged his fellow Republicans to refrain from personalizing the issue and not to let it affect them personally. He advised them not to fall for any provocation if such attempts were made.
Regier emphasized, “Today, we will ensure that our voice is heard loud and clear. The voters have granted us a supermajority, and it is our responsibility to represent them. While they may possess a microphone, we hold the power of their votes.”
HB 361 was also discussed during a caucus meeting among House Democrats, with House Minority Leader Kim Abbott of Helena predicting a “tough debate.”
Abbott emphasized the importance of prioritizing our well-being and looking out for one another. He assured that we will be vigilant in identifying inappropriate language on the floor and will voice our objections while also advocating for our community.
Once HB 361 successfully passes a second vote on the House floor, it will proceed to the Senate for further discussion and potential action.
