Last week, the Montana Supreme Court ruled that the description Attorney General Tim Fox had written for I-183a ballot initiative that would require Montanans to use bathrooms and locker rooms that correspond to the sexes on their birth certificates—did not convey enough information. The court ruled that Fox had not made it clear that I-183 would primarily affect transgendered people or apply to local schools, and that the fiscal note did not adequately convey the measure's cost. The court also ruled that Fox's description failed to define "sex" in sentences like this:
"I-183 requires government entities to designate a protected facility in a government building or public school for use only by members of one sex, and prohibits persons from using a protected facility other than the facility that is designated for that person's sex."
What determines a person's sex? Most people would say they know by looking, which is exactly the problem with I-183. The initiative specifies that people's sexes would be determined not by how they live their daily lives, but by their birth certificates.
That means Montanans who have undergone sex reassignment surgery—or those who were born with ambiguous genitalia, or take hormones, or simply chose their gender without the assistance of a doctor—would have to use facilities that correspond to the genders assigned to them at birth. Presumably, the rest of us would just show our papers or submit to a quick inspection.
It takes a perverse imagination to name this proposal the Locker Room Privacy Act. That imagination belongs to Jeff Laszloffy, president and CEO of the Montana Family Foundation. The day after the Supreme Court's ruling, he sent out a press release titled "Montana Family Foundation Celebrates Big Win at Montana Supreme Court." Quoting himself, Laszloffy cited the court's decision not to simply remove I-183 from the ballot as a "major victory."
That same day, the ACLU released its own statement, also declaring victory, on the grounds that the court agreed with its challenge to Fox's ballot description. From there, it moved smoothly to the claim that Montana law voids the 25,000 or so signatures that Laszloffy's group gathered to put I-183 on the ballot, now that the description has to be changed. That part of the release is the ACLU's argument, but it's made to sound like the decision of the court, which in fact did not throw out the signatures.
These dueling press releases reflect the character of debate over I-183, which has been conducted on the principle of misleading voters. For example, the word "transgender" did not appear anywhere in Fox's rejected ballot description. It is conspicuously absent from the Montana Family Foundation's marketing, too. The description of I-183 on its website, for example, argues that "it's just common sense that high school girls shouldn't be forced to shower next to boys."
"It's just common sense" is politics for "please don't think about this question." Laszloffy's foundation seems to be betting that people will agree that men shouldn't use the women's locker without stopping to consider how the government might determine who men and women are.
I have a friend who went to Switzerland in the 1990s for a series of sex reassignment surgeries. If she walked into a men's locker room today, common sense would cause a riot. I have another friend who hasn't gotten surgery, but wears a full beard and competes in the men's division of jiu jitsu tournaments, thanks to testosterone therapy. What does common sense say about that?
The Montana Family Foundation has nothing to say about how its initiative would affect these people. Instead, it focuses on the hypothetical scenario of high school boys trying to get into the girls' locker room by merely announcing that they are female. I have never heard of that happening. It does not seem to be a real problem, in Montana or anywhere else.
A real problem is sexual assault committed against transgender people, at a rate the federal Office for Victims of Crime puts at 50 percent. Another real problem is widespread discrimination against people who don't clearly present as one gender or another. These people are not getting a sweet deal on bathrooms by contradicting their birth certificates. They are incurring real prejudice in almost every facet of their lives.
I don't think the problem is that the 0.3 percent of Montanans who identify as trans are terrorizing the other 99.7 percent of us in locker rooms. I think the problem is that Laszloffy makes his living turning popular prejudices into politics, and prejudice isn't as popular as it used to be. You can see that every time he contorts himself to talk around his own ideas. Maybe asking the government to divide us into men and women isn't common sense. Maybe the Montana Family Foundation is consistently vague about what it's doing because what it's doing is consistently awful.
Dan Brooks writes about politics, culture and what is commonly sensed at combatblog.net.