LGBT rights in Montana

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Montana may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in Montana since 1997. Same-sex couples and families headed by same-sex couples are eligible for all of the protections available to opposite-sex married couples, as same-sex marriage has been legal since November 2014. State statutes do not address discrimination on the basis of sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County, Georgia established that employment discrimination against LGBT people is illegal. A number of cities also provide protections in housing and public accommodations.

LGBT rights in Montana
StatusLegal since 1997
(Gryczan v. State)
Gender identityAltering sex on birth certificate does not require sex reassignment surgery
Discrimination protectionsSexual orientation and gender identity protected in employment
Family rights
Recognition of relationshipsSame-sex marriage since 2014
AdoptionSame-sex couples allowed to adopt

History

Among the Native Americans, perceptions towards gender and sexuality were very different from that of the Western world. Among the Blackfeet people, the a'yai-kik-ahsi (literally acts like a woman) are male-bodied individuals who behave, dress, and live as women. Likewise, female-bodied individuals who act and behave as men are known as awau-katsik-saki (literally warrior woman) or ninauh-oskiti-pahpyaki (literally manly-hearted woman). The Gros Ventre, the Cheyenne, the Assiniboine and the Crow refer to male-to-female individuals as athuth, he'émáné'e, wįktą and bate (or badé), respectively, whereas female-to-male people are known as hetanémáné'e among the Cheyenne. The bate would perform domestic tasks (such as cooking and needlework), dress as women and even marry. Osh-Tisch, one of the most famous Crow bate, and others were forced by an American agent in the 1890s to wear male clothes and perform manual labor, to which the other Crows protested "saying it was against [their] nature".[1]

The Montana Territory adopted its first criminal code in 1865. It included a provision prohibiting sodomy ("crime against nature") with five years' to life imprisonment. In 1878, Montana saw one of the earliest recorded sodomy cases in the United States; in Territory v. Mahaffey, a man was convicted of sexual relations with a 14-year-old boy. In 1915, the Montana Supreme Court ruled that fellatio (oral sex), whether heterosexual and homosexual, was also criminal. Over the years, the courts convicted multiple people of sodomy, even consenting adults.[2]

In 1972, the Montana Legislature rejected a proposal that read "private sexual acts between consenting adults do not constitute a crime", by a 69-16 vote. In 1973, a new criminal code was enacted. Sodomy was renamed "deviate sexual conduct", made applicable only to people of the same sex (thus legalizing heterosexual oral and anal sex), and punishable by up to ten years' imprisonment and a possible fine of 50,000 dollars.[2] A 1989 sex offender registration law further required anyone convicted of sodomy to register with the local chief of police and report any change in address.

Legality of same-sex sexual activity

Montana revised its Criminal Code in 1973 and retained its anti-sodomy statute. In 1991, the Montana Legislature made its rape and sexual assault laws gender-neutral, providing for a uniform penalty for both heterosexual and homosexual rape (minimum two years' imprisonment). Attempts to repeal the state's sodomy law failed in 1993 and 1995. In 1997, the Montana Supreme Court held in Gryczan v. State that the state law prohibiting same-sex sexual contact between consenting adults was unconstitutional.[3] Justice James C. Nelson, writing for the 6-1 majority, stated:[2]

It cannot seriously be argued that Respondents do not have a subjective or actual expectation of privacy in their sexual activities. With few exceptions not at issue here, all adults regardless of gender, fully and properly expect that their consensual sexual activities will not be subject to the prying eyes of others or to governmental snooping and regulation. Quite simply, consenting adults expect that neither the state nor their neighbors will be co-habitants of their bedrooms.

Attempts to repeal the statute failed in 1999, 2001 and 2011.[4]

On February 20, 2013, the Montana State Senate passed a bill, by a vote of 38 to 11 vote, that repealed part of the sodomy statute dealing with consenting adults. On April 10, 2013, the Montana House of Representatives passed the bill by a vote of 64 to 35. Governor Steve Bullock signed the legislation into law on April 18.[5][6]

Recognition of same-sex relationships
Main article: Same-sex marriage in Montana

A federal court ruled the state's ban on same-sex marriage unconstitutional on November 19, 2014. Judge Brian Morris issued an injunction against the state's enforcement of its ban that took effect immediately. The state's appeal to the Ninth Circuit Court of Appeals was mooted when the U.S. Supreme Court ruled in Obergefell v. Hodges on June 26, 2015 that Ohio's ban on same-sex marriage is unconstitutional, striking down every remaining state ban.[7]

Montana voters had adopted a constitutional amendment in November 2004 that defined marriage as the union of a man and a woman.[8] Similar restrictions appear in the state statutes.[9]

Adoption and parenting

Montana permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on second-parent adoption. In addition, lesbian couples have access to assisted reproduction services, such as in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but only if the parents are married.[10]

Montana law does not regulate the practice of surrogacy, but courts are generally favorable to the process. Generally, courts will grant pre-birth parentage orders to married or unmarried couples and individuals when there is a genetic relationship to the child. The availability of parentage orders to individuals and couples with no genetic link to a child is more often determined on a case-by-case basis. Couples using the traditional surrogacy process may require a post-birth hearing or adoption to obtain legal rights to their child.[11]

In Kulstad v. Maniaci, Barbara Maniaci refused to allow Michelle Kulstad to see the children they had raised together and who had legally been adopted only by Maniaci, but the trial court sided with Kulstad and granted her parental rights. The Montana Supreme Court affirmed this ruling 6-1 on October 7, 2009, setting precedent allowing for future stepparent adoptions by same-sex couples statewide.[12][13]

Discrimination protections
Further information: LGBT employment discrimination in the United States
Map of Montana counties and cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in state employment

Montana, by executive order, prohibits discrimination on the bias of sexual orientation and gender identity in state employment and state (sub)contractors. In 2000, Governor Marc Racicot first issued state personnel rules prohibiting discrimination and harassment on the basis of sexual orientation with respect to employment by state government.[14] In November 2008, Governor Brian Schweitzer issued Executive Order No. 41-2008, broadening the government non-discrimination provisions.[15] In January 2016, Governor Steve Bullock expanded the protections to cover gender identity and expanded it to state contractors and subcontractors.[16]

On February 23, 2011, the Montana House of Representatives passed, by a 62-37 vote, a bill that would have prohibited local municipalities from adopting anti-discrimination policies not protected in the state law. The bill died in the Montana State Senate's Standing Committee on April 28, 2011.[17]

The following Montana municipalities have ordinances prohibiting discrimination on the basis of sexual orientation and gender identity in both public and private employment, housing and public accommodations: Bozeman,[18] Butte,[19] Helena,[20] Missoula,[21] and Whitefish.[22] Missoula County prohibits discrimination against county employees only.[23]

Bostock v. Clayton County, Georgia

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia, consolidated with Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.[24][25][26]

Hate crime law

Montana's hate crime statutes do not include sexual orientation or gender identity as protected grounds.[27] Hate crimes committed on the basis of the victim's sexual orientation or gender identity can be prosecuted through federal courts under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which was signed into law in October 2009 by President Barack Obama.

Transgender rights
Further information: Transgender rights in the United States

Transgender people may change the gender marker on their official documents in Montana. Previously, they could only do this following sex reassignment surgery and clinical treatment. However, changes in December 2017 removed these requirements. Since then, transgender individuals may change their legal gender by submitting an affidavit to the Department of Public Health and Human Services. No court order or medical documentation is necessary.[28]

In June 2018, it was revealed that a conservative initiative to require transgender people to use public bathrooms corresponding with their birth sex had failed to collect the necessary signatures to appear on the ballot.[29]

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 57% of Montana residents supported same-sex marriage, while 37% opposed it and 6% were unsure. Additionally, 61% supported an anti-discrimination law covering sexual orientation and gender identity. 33% were opposed.[30]

Public opinion for LGBT anti-discrimination laws in Montana
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 274 ? 62% 31% 7%
Public Religion Research Institute January 3-December 30, 2018 300 ? 72% 24% 4%
Public Religion Research Institute April 5-December 23, 2017 348 ? 61% 33% 6%
Public Religion Research Institute April 29, 2015-January 7, 2016 465 ? 64% 32% 4%
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References
  1. Sabine Lang, Men as Women, Women as Men ISBN 0292777957, 2010
  2. The History of Sodomy Laws in the United States: Montana
  3. Jason Pierceson, Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada (Temple University Press, 2005), 83-5, available online, accessed April 14, 2011
  4. Billings Gazette: Charles S. Johnson, "Montana House refuses to blast gay sex ban bill out of committee," March 29, 2011, accessed April 14, 2011
  5. "SB 107". Laws.leg.mt.gov. Retrieved 2014-06-29.
  6. "Montana axes obsolete sodomy law". San Diego Gay & Lesbian News. April 19, 2013. Retrieved May 18, 2013.
  7. Johnson, Chris (November 19, 2014). "Judge strikes down Montana ban on same-sex marriage". Washington Blade. Retrieved November 19, 2014.
  8. CNN: 2004 Ballot Measures, accessed April 14, 2011
  9. Human Resources Campaign: Montana Marriage/Relationship Recognition Law Archived 2011-05-24 at the Wayback Machine, accessed April 14, 2011
  10. "Montana's equality profile". Movement Advancement Project.
  11. "What You Need to Know About Surrogacy in Montana". American Surrogacy.
  12. Justice: Discrimination against gays "a prevalent societal cancer grounded in bigotry and hate"
  13. Human Resources Campaign: Montana Adoption Law Archived 2012-02-18 at the Wayback Machine, accessed April 14, 2011
  14. Montana – Sexual Orientation and Gender Identity Law and Documentation of Discrimination
  15. Executive Order No. 41-2008
  16. Montana Governor Steve Bullock Signs Executive Order Protecting LGBT State Employees
  17. "MT HB516 | 2011 | Regular Session". Legiscan.com. Retrieved 2014-06-29.
  18. "Bozeman, Mont., adopts LGBT-inclusive non-discrimination ordinance". LGBTQ Nation. June 3, 2014.
  19. Smith, Mike (February 20, 2014). "Butte-Silver Bow commissioners OK anti-discrimination law". Missoulian. Retrieved February 20, 2014.
  20. Talwani, Sanjay (December 18, 2012). "Nondiscrimination ordinance passes unanimously in Helena". Billings Gazette. Retrieved December 18, 2012.
  21. Missoulian: Keila Szpaler, "Missoula City Council makes history in adopting non-discrimination law," April 14, 2010, accessed April 14, 2011
  22. "Whitefish council unanimously passes nondiscrimination ordinance". NBC Montana. April 6, 2016.
  23. "Human Resources - Job Listings". Missoula County. Missoula County will not refuse employment or discriminate in compensation, benefits, or the other terms, conditions and privileges of employment based upon: [...] sexual orientation, gender identity, or expression
  24. Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
  25. "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
  26. Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
  27. Human Resources Campaign: Montana Hate Crimes Law Archived 2012-03-11 at the Wayback Machine, accessed April 14, 2011
  28. Montana, National Center for Transgender Equality
  29. Montana Joins the List of States that Have Rejected Anti-Trans Discrimination
  30. PRRI: American Values Atlas 2017
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