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Document Type

Essay

Abstract

The United States is seeing a wave of explicit anti-transgender animus, expressed in the form of legislation banishing transgender individuals from full participation in public life. In Montana, such a measure was defeated in the Legislature in the 2017 session. HB 609 would have discriminated against transgender individuals by prohibiting them from using the restroom, locker room, or changing facility in a government building or under public control that corresponds with their gender identity. Following the House Judiciary Committee’s rejection of HB 609, the Montana Family Foundation began collecting signatures on ballot initiative I-183, a nearly identical measure to HB 609, with the intent of placing it on the ballot in 2018.

What does the Montana Constitution say about the anti-transgender discrimination embodied in measures like HB 609 and I-183? Surely such legislation is unconstitutional because it classifies on the basis of sex. But that answer does not begin to do justice to the harms transgender discrimination inflicts. And the Montana Constitution does not limit the analysis to this answer. In fact, it compels a deeper analysis that is rooted in the principle of dignity that expressly undergirds Montana’s constitutional protections against discrimination.

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