House lawmakers in the Montana Legislature on Wednesday preliminarily approved a bill that requires bathroom and sleeping-area use based on a person’s chromosomes and reproductive biology. 

In a party-line vote, 58 legislators in the Republican-majority chamber affirmed House Bill 121 over 42 opponents. The bill requires one more vote to advance to the Senate.

Critics have cast the measure as an unenforceable restriction on transgender people and those whose appearance doesn’t clearly match stereotypical gender presentations. 

Supporters, including sponsor Rep. Kerri Seekins-Crowe, R-Billings, have mostly sidestepped the mention of trans people when talking about the bill’s impact, arguing that it will generally help protect women from men who enter restrooms and dormitories with a predatory intent.  

“This bill is not about discrimination. It’s about protecting those things that have been eroding these last few years for women,” Seekins-Crowe said. “All this bill is asking for is reasonable accommodations.”

HB 121 would require public facilities, such as schools and prisons, and some private facilities, including domestic violence shelters, to provide multi-user restrooms and dormitories for the “exclusive use” of males and females. The bill’s definitions of sex are based on a person’s XX or XY chromosomes and their production of eggs or sperm.

Another provision in the bill would also allow any individual who “encounters another individual of the opposite sex in the restroom or changing room” to sue the offending facility or organization within two years of the event. The bill would go into effect immediately upon being signed into law.

Opponents raised a slew of concerns about enforceability during the bill’s first committee hearing in early January, including how a facility with multi-user restrooms, changing rooms or dorms can confirm a person’s chromosomal or reproductive makeup. Critics also flagged the potential costs for local municipalities and how the right to legal action could encourage vigilante enforcement of sex-segregated public bathroom use.

The bill passed the House Judiciary Committee in a party-line vote on Monday, with Democrats raising similar concerns voiced by the legislation’s opponents. 

Members of the minority party again sought to convince Republican lawmakers of the measure’s impact during the Wednesday floor debate.

“‘This is not an issue,’ is what was said again and again by the people impacted on the ground,” said Rep. Zooey Zephyr, D-Missoula, who sits on the House committee. Rather than making cisgender women feel more safe, Zephyr posed that the proposal would only interfere with the daily routines of trans people. “To me, trans people walk through the state of Montana afraid enough already. And we want to be able to live our lives in peace,” she said.

Some Republicans who occasionally vote with Democrats on other issues, including Rep. David Bedey, R-Hamilton, and Rep. Brad Barker, R-Roberts, said they shared concerns about the bill’s enforceability and cost for cities and towns. But both lawmakers voted to move the measure forward, suggesting that some of those issues could be resolved through amendments in the Montana Senate.

Other supporters described the bill as a necessary step to secure public places against bad actors who pose as trans to gain access to vulnerable places.

“Because of the destruction of societal customs, any predator or person with malicious intent can more easily invade private female spaces without calling attention to themselves,” said Rep. Fiona Nave, R-Columbus. 

Opponents said such circumstances are based more on fear than reality, and that similar bills in other states have often opened the door to harassment toward people who appear to be transgender, regardless of their actions. 

Democratic lawmakers on Wednesday also said the bill oversteps the Legislature’s role by policing people’s presence rather than their actions. Any criminal conduct in the affected spaces, including harassment and assault, is already illegal, said Rep. SJ Howell, R-Missoula. 

“It is appropriate for us as a body to legislate harmful behavior. It is not appropriate to legislate people existing,” Howell said. “Montana values are simple. Love thy neighbor. Mind thy business. This bill does neither.”

At least 11 other states have passed similar bills in recent years, a legislative trend encouraged by national conservative groups. One of those groups is the Alliance Defending Freedom, which has testified in support of HB 121. 

Lobbyists and lawmakers watching HB 121’s progress predict another robust committee hearing in the Senate. The bill’s first hearing stretched more than three hours, drawing testimony from almost 20 proponents and nearly 30 opponents before committee members launched into questions. 

One of the lines of inquiry included the bill’s fiscal impact. A document produced by legislative staff and executive branch committees lists the known costs as zero dollars but acknowledges “potential costs associated with staffing increases, renovations of state facilities, and increased legal exposure.” 

While the fiscal note says that specific costs to state agencies are “unknown” or “not currently estimable,” it forecasts that fiscal impact to local school districts could be “significant.”