Lawmakers on Tuesday narrowly rejected an effort to ban transgender individuals from using bathrooms in the Montana state Capitol. Four Republicans joined all Democrats in voting down the measure during a meeting of the Joint Rules Committee, a 40-member committee tasked with legislating the rules that govern the Montana Legislature.
The proposal, brought by Rep. Jerry Schillinger, R-Circle, affected two bathrooms in the state Capitol reserved only for legislators. It designated one bathroom as “reserved exclusively for use by a male” and the other as “reserved exclusively for use by a female.” The proposal defined “male” and “female” as an individual possessing XX or XY chromosomes, respectively, and having specified sexual organs.
Numerous Republican committee members described the proposal as a matter of protecting female lawmakers who, they alleged, felt uncomfortable sharing bathrooms with “a man” during the last legislative session.
“There are a number of females in both chambers who are not comfortable,” Rep. Jed Hinkle, R-Belgrade, said.
Though not explicitly named by proponents, the rule pertained to Rep. Zooey Zephyr, D-Missoula, who in 2023 became the first transgender woman to serve in the state Legislature. Zephyr was reelected last month.
Despite broad support from Rules Committee Republicans, a handful of GOP members expressed concern that barring transgender individuals from Capitol bathrooms would create legal challenges and embroil the Legislature in conflict.
“It was my impression that the purpose of the rules that we have here are to allow for the efficient conduct of the people’s business so that we can get things done in a civil manner,” Rep. David Bedey, R-Hamilton, said. “When I think about a rule like this, I would ask myself the question, ‘Does this rule in any way contribute to meeting that purpose?’”
Bedey added, “This particular action will have the effect of making people famous in the national news and will not contribute to the effective conduct of our business.”
Rep. Brad Barker, R-Luther, said the Legislature “passed some good legislation on this topic” and that he did not see how the rule “furthers the function of the efficiency of the Legislature.”
Rep. Ed Buttrey, R-Great Falls, asked Schillinger, the sponsor, how the Legislature would confirm a legislator’s biological sex and chromosomal makeup.
Schillinger responded that he believed it would not “necessarily have to go to that level.”
Director of Legal Services and Code Commissioner Todd Everts said there is little precedent surrounding the legality of testing lawmakers’ biological sexes or chromosomal makeups, calling it “an area of law that’s unsettled.”
The proposal passed the Senate Rules Committee 11-7, with Sen. Wendy McKamey, R-Great Falls, joining all six Democrats to vote no. However, it failed 10-12 on the House side, with Reps. Bedey, Barker and Courtenay Sprunger, R-Kalispell, joining the committee’s nine Democrats to vote no. In order to pass, the rule would have needed to pass both the Senate and House sides of the committee.
The Legislature last session passed a number of bills pertaining to transgender Montanans, including a ban on gender-affirming healthcare for minors and law defining “sex” as binary. Zephyr was censured by Speaker of the House Matt Regier, R-Kalispell, for comments she made on the House floor opposing the gender-affirming care ban.
Tuesday’s effort to bar Zephyr and future transgender lawmakers from Capitol bathrooms followed a protracted fight in the U.S. House last month, which culminated in the banning of Sarah McBride, a Delaware Democrat and the first transgender woman elected to Congress, from using some Capitol and House office building bathrooms.
Zephyr posted on X on Tuesday morning, “I’m happy to see that this proposed ban failed and am grateful for my colleagues—particularly my republican colleagues—who recognized this as a distraction from the work we were elected to do. I’m ready to represent my constituents & look forward to working on behalf of Montana.”