The Montana Legislature’s Joint Rules Committee on Tuesday voted down a proposed rule change targeted at a Democratic transgender representative from Missoula that sought to designate the use of private restrooms shared by the two chambers based on a lawmakers’ sex chromosomes at birth.
The proposed rule change was offered by Rep. Jerry Schillinger, R-Circle, and though the Senate side of the joint committee voted to approve it — with Sen. Wendy McKamey, R-Great Falls, the lone Republican vote in opposition — the House side of the committee killed the proposal when three Republicans joined Democrats to oppose it.
The three House Republicans who voted against the measure were Reps. David Bedey, R-Hamilton; Brad Barker, R-Luther; and Courtenay Sprunger, R-Kalispell.
Though her name was not mentioned in the proposal or discussion, several lawmakers made clear the proposal was primarily targeted at Rep. Zooey Zephyr, D-Missoula, who is Montana’s first openly transgender female lawmaker, reports the Daily Montanan. In addition to Zephyr, there is one nonbinary lawmaker who is a member of the Legislature, Rep. S.J. Howell, D-Missoula.
Zephyr won re-election this year after she was censured by Republicans at the end of the 2023 session and banished from the House floor for telling Republican lawmakers — who held a supermajority in both chambers in 2023 — they had blood on their hands for passing a bill banning gender-affirming care for minors in Montana.
Zephyr’s outspokenness and her subsequent punishment made national and international headlines and led Republicans to close the House gallery to the public for the remainder of the session following a large protest in which several people were arrested.
Schillinger told the joint rules committee he wanted to put into the rules that the women’s restroom only be used by “gals” and the men’s room used by men. But Bedey was the first to speak up after Schillinger’s introduction and said such a proposal should not be in the joint rules because it had nothing to do with getting their work done in a civil and timely manner.
“I do think that taking this particular action is a distraction from us doing our duties,” Bedey said. “We have a reasonable accommodation that we put in place. 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.”
Barker agreed, saying while he has his own opinions on the topic of transgender people, he said he did not believe the joint rules needed a bathroom clause in order for the Legislature to function efficiently.
Rep. Ed Buttrey, R-Great Falls, asked whether a legislator would have to take a sort of test that would be made public in order to adhere to the language of the proposal, which defines females as having XX chromosomes and males as having XY chromosomes. Legislative Code Commissioner Todd Everts said the question involved unsettled law and he would not have the information needed to answer.
Rep. Jed Hinkle, R-Belgrade, said that last session, there were extra locks on the doors of the bathrooms in between the House and Senate so a single lawmaker could close off the entire restroom, and locks on the stalls, which several other lawmakers confirmed to the Daily Montanan. Typically, the outer doors of the private restrooms for the lawmakers are unlocked.
Hinkle claimed that some women lawmakers would not use the women’s room and would instead use other public restrooms, or private ones reserved for lawmakers in the Capitol basement.
“We have one representative right now, but in the future, we could have many,” Hinkle said. “This could be an ongoing thing, and I think it’s time that this body address this issue now, as they are addressing it nationally … that women have their spaces and they need to be comfortable in those spaces.”
In an interview, Zephyr said she was not aware of any time during the 2023 session when a lawmaker chose to lock the outside door and that she had used the women’s restroom alongside Democrats and Republicans without issue and without any negative comments from anyone.
Rep. Braxton Mitchell, R-Columbia Falls, said President-elect Donald Trump’s election and Republicans winning the U.S. House and Senate meant voters had “clearly rejected this craziness.”
Some medical professionals have noted that sex definitions are not binary and say that forcing sex into “male” and “female” fails to capture the breadth of human anatomy and biology.
Transgender people’s bathroom use has again become a national story because of the election of U.S. Rep. Sarah McBride, D-Delaware, a transgender woman, to Congress, where some representatives and House Speaker Mike Johnson, R-Louisiana, have pledged to bar McBride access to women’s restrooms at the Capitol. Trump and several other Republicans also made transgender women playing sports a key issue to their campaigns, and Trump’s campaign spent at least $11 million in advertising on the issue, according to NPR.
Bedey pushed back on his fellow Republicans’ assessment, however.
“As was pointed out before by our code commissioner, this is a matter of contention right now. We don’t need this distraction. What we did last session, there is no evidence we had people missing votes,” he said.
Senate Minority Leader Pat Flowers, D-Belgrade, agreed that lawmakers had resolved the question before last session by leadership from both chambers and putting rules in place was “the wrong venue to address the issue.”
Zephyr said she was pleased with the support from some Republicans and ready to get to work next session.
“I am grateful that I will get to work with my colleagues, both Democrats and Republicans, and then particularly grateful to those in the Republican caucus who recognize that this is an attempt to distract from the work we should be doing for Montana,” Zephyr said.
The Joint Rules Committee and the rules committees of both the House and Senate voted to adopt amendments to their rules Tuesday, which will have to be finalized by both chambers after the Jan. 6 start of the legislative session and could still be amended.
