Privacy Bill Defining Biological Sex, Restricting Bathroom Use Clears Senate

Legislation will head to Governor’s desk after third reading on Tuesday

By Micah Drew for the Daily Montanan

A sign outside one of the bathrooms in the Montana State Capitol. House Bill 121 would restrict access to bathrooms based strictly on biological sex. (Micah Drew/ Daily Montanan)

A bill that defines sex and and aims to enhance privacy in public restrooms and changing rooms by restricting use passed the Montana Senate on party lines, clearing that last major hurdle before reaching the governor’s desk.

House Bill 121, one of the first measures introduced during the session, would require public restrooms and changing areas exclusively for males or females, and require people use the one “designated for their sex” based on “external genitalia present at birth.”

“This bill is essentially about the recognition of the right of personal privacy and personal dignity by ensuring that individuals have access to private spaces free from discomfort or intrusion,” said Senator John Fuller, R-Kalispell, who carried the measure in the Senate.

He said the bill is also about safety and clarity.

“It reinforces protection for women and children and outlines specific spaces for their privacy and well being,” Fuller said. And “it provides a clear definition of biological sex, recognizing reality and remember that reality is not paying attention to your wishes and likes and dislikes.”

The bill covers bathrooms and changing rooms in public buildings, including schools, correctional centers, juvenile detention facilities, local domestic violence programs, and other places.

It also allows individuals the right to take legal action if they encounter someone they suspect is of the opposite sex in a designated bathroom.

Both the House and Senate judiciary committees held long hearings on the proposed legislation with dozens of opponents and proponents speaking on the intent and effects of the bill.

In discussions before HB 121 passed the House 58-42, bill sponsor Representative Kerri Seekins-Crowe, R-Billings said it’s needed to protect women and children and puts “common-sense boundaries” in place in shared spaces.

“Girls should not feel uncomfortable or afraid to use a restroom or locker room at school,” Seekins-Crowe said on the House floor last month.

Democrats, on the other hand, who unanimously opposed the measure in both chambers, said the bill likely carries a higher cost than the $0 “immediate costs” attributed in the fiscal note, and that it would likely end up bogged down in the legal system.

A similar bill from the 2023 legislature that defined biological sex is still tied up in court.

A number of opponents who testified during bill hearings spoke about the bill specifically targeting transgender individuals, and pointed out that it could create dangerous situations with the possibility of legal action.

“I just want to remind everyone what this bill actually does. It is asking trans men with beards to go into bathrooms with women and girls,” Senator Cora Neumann, D-Bozeman, said on the Senate floor. “Think about how uncomfortable that is.”

The bill specifically does not give regard to “an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.”

Democratic Senator Laura Smith, of Helena, attempted to amend the bill by changing the effective date from immediately upon the governor’s signature to July 1, saying she’s spoken with domestic violence shelters and homeless shelters that would have to shut down immediately in order to be compliant with the law.

Republican senators pushed back by saying that a law protecting women and girls should not be pushed back for any length of time, and the amendment failed.

Barring any changes in the vote tally during third reading on Tuesday, the bill will head to Governor Greg Gianforte for signature. The governor said during his State of the State address he would welcome the bill on his desk.