UPDATED: Lawmakers sign off on governor’s amendments to bill banning gender-affirming care

Senate, House pass amendment proposed by governor; third reading scheduled for Wednesday

By: - April 18, 2023 4:30 pm

Gov. Greg Gianforte speaks at a press conference on March 30, 2023. (Photo by Nicole Girten/Daily Montanan)

Montana Gov. Greg Gianforte on Monday recommended amendments be made to Senate Bill 99, the legislature’s proposed ban on gender-affirming care for minors, calling the term “Orwellian Newspeak” and asking lawmakers to “strengthen” the bill by tweaking certain language around the definitions of “male” and “female.”

“I share your profound commitment to protect Montana children from invasive medical treatments that can permanently alter their healthy, developing bodies, and I appreciate the Legislature’s effort to that end with Senate Bill 99, the Youth Health Protection Act,” Gianforte wrote in his veto letter requesting amendments.

In his letter to the Republican Senate president and House speaker, the Republican governor says that he has met with transgender children and adults and understands their struggles.

“I firmly believe that, as with all of God’s children, Montanans who struggle with their gender identity deserve love, compassion and respect,” he wrote in the letter to the legislative leaders.

He further claims that SB99 does not prohibit “thoughtful, noninvasive care as a response to those who struggle with gender identity;” “social affirmation;” or “providing or accessing psychotherapy to treat young Montanans struggling with their gender identity.”

He wrote that rather, it focuses only on “so-called” gender-affirming care.

“’Gender affirming care’ for children is Orwellian Newspeak, a seemingly innocuous, even solicitous phrase that masks its true nature of permanent, invasive, life-altering medical and surgical procedures, performed on children whose young minds and bodies are still developing,” Gianforte wrote to the Republican House Speaker Matt Regier, R-Kalispell, and Senate President Jason Ellsworth, R-Hamilton.

Gianforte wrote he believes the bill will protect Montana children from what he calls the “evolving science” around gender-affirming care, that he supports the legislature’s intent, and that he believes the bill “is incomplete and can be strengthened.”

He told the legislative leadership that the current definitions of “male” and “female” in the bill does not contemplate treatments for children born with a “medically verifiable disorder of sex development” like being intersex, undergoing menopause or having cancer that required the removal of a person’s reproductive organs. Further, he said the bill is unclear about restrictions for public funding of gender-affirming care.

Gianforte’s proposed amendments include clarifying that “female” means a person with XX chromosomes who produces eggs, who would otherwise fall under that definition except for a biological or genetic condition.

The proposed amendment would also clarify that “male” means someone who has XY chromosomes and would produce sperm, adding similar language about otherwise falling under the definition of a male if they have a biological or genetic definition.

It further clarifies under the definition of “gender” that “an individual’s gender may or may not align with the individual’s sex.”

The proposed amendment also adds language under the definition of “social transitioning” to say it involves treatments for “the purpose of” the minor presenting as the opposite sex,” and refers to gender-affirming care as a “medical treatment” rather than a “procedure.”

“This ensures that the exceptions to the prohibitions apply with equal force to public funding and removes vagueness from the law as to its meaning and scope,” Gianforte wrote to the Republican legislative leaders.

The Senate considered the proposed amendments from Gianforte on Monday evening around 8 p.m.

Fuller was brief in his remarks, saying the governor’s amendments “show compassion and legal acuity” and his constituents sent him to the Capitol “to protect Montana’s children.”

“This bill does exactly that,” Fuller said.

Sen. Jen Gross, D-Billings, and Minority Leader Pat Flowers, D-Belgrade, spoke in opposition, telling their colleagues it was their final chance to vote against what they called a bad bill and admonishing its supporters.

Gross said it appeared to her that legislators were in a contest over who could write the bill that hurts the most vulnerable Montanans.

“I don’t know whether to congratulate and thank the governor and the legislature or condemn and decry for producing and endorsing the biggest bullying bill I have seen in my legislative career,” Gross said, also questioning the governor’s claim he had met with transgender people this year.

“If you think that farmers know best about farming; ranchers know best about ranching; tow truck drivers know best about tow truck rigs; business owners know best about business; realtors know best about real estate, then let’s show some semblance of consistency and leave being trans and raising trans kids to the experts,” she added. “Those experts are their parents and their doctors.”

Flowers said the bill should never have been discussed in the first place while Montana deals with other issues needing to be addressed, like housing, child care, mental health and property taxes.

He said instead, the Republican supermajority had talked about parental rights repeatedly – “except when those parental rights violate whatever your standards are of propriety.”

“These amendments do nothing to improve this bill,” Flowers said. “They do nothing to spare trans Montanans the pain and suffering we heard about in hearings for hours.”

Sens. Wendy McKamey, R-Great Falls, Terry Vermeire, R-Anaconda, and Jeff Welborn, R-Dillon, joined Democrats in voting against the amendment from the governor, which passed 31-19.

On Tuesday, the House also voted to adopt the governor’s proposed amendments in a 66-34 vote, with Reps. Greg Frazer, R-Deer Lodge, and Mike Hopkins, R-Missoula, voting against them.

Several Democrats spoke against the governor’s amendments and the bill as a whole, saying they did not appreciate the governor’s amendments or letter to lawmakers.

Rep. Zooey Zephyr, D-Missoula, said Gianforte’s letter contained “hollow words” and that forcing trans children to go through puberty was “tantamount to torture.”

She told anyone in the House who votes for the bill they should be ashamed, which drew an objection from House Majority Leader Sue Vinton, R-Billings, who said those voting in favor “will not be shamed.”

“If you vote yes on this bill and yes on these amendments, I hope the next time there’s an invocation, when you bow your heads in prayer, you see the blood on your hands,” Zephyr told the chamber.

Vinton said Zephyr’s statement was “inappropriate, disrespectful and uncalled for” and asked the chamber to debate measures while being respectful.

Rep. Kerri Seekins-Crowe, R-Billings, closed on the bill by saying that help for youth would not come in the form of transitioning.

“These amendments are good amendments; I encourage you to vote yes,” she said.

After the amendments were adopted Tuesday, the measure is scheduled for a third reading in the House on Wednesday.

Along with banning gender-affirming care, Fuller’s Senate Bill 99 subjects physicians who provide gender-affirming care to discipline including the potential loss or suspension of their license, allows the attorney general to seek actions against providers, and allows a person who “suffers an injury” from gender-affirming care to bring civil claims against providers up to four years after they discover the injury.

The Montana Chapter of the American Academy of Pediatrics said Gianforte’s letter “perpetuates misleading and inaccurate information about gender affirming care that runs counter to the consensus among medical and scientific professionals” and include inaccurate definitions of “male and female.”

“MTAAP has heard from many families who are worried about losing access to critical healthcare as a result of our state’s legislation of medical care,” the chapter said in a statement. “Pediatricians will continue to advocate for LGBTQ+ patients and all the patients in our care. To all transgender and gender-diverse youth in Montana: you are seen, you are loved, and you belong in Montana.”

Keegan Medrano, the public policy and advocacy director for the ACLU of Montana, said they felt the veto letter said more than the amendments on where the governor and his office stood on the issue and that they believed the legislature would adhere to the requested amendments.

The ACLU of Montana, along with the national ACLU and Lambda Legal, have pledged to take the bill to court if it is signed by the governor. Medrano said the organizations would “respond accordingly” should the legislature approve the amendments and Gianforte sign the measure into law.

Hillary-Anne Crosby, a spokesperson for the Montana Sexual and Reproductive Health Collective, said the organization would continue advocating for transgender youth and their families regardless of what the legislature and governor decide.

“There is not an amendment that could fix Senate Bill 99. Gov. Gianforte’s amendment only doubles down on a bill attacking Montana’s amazing trans youth when what they deserve is access to medically accurate information and the full breadth of safe, legal health care options,” Crosby said in a statement. “No person’s body should be policed and young people must be supported in deciding what gender-affirming care is right for them with their medical providers and families.

Throughout the 2023 session, transgender children and their parents, transgender adults, and many in the medical community have testified in opposition to the bill, saying it would not only harm transgender youth and increase suicidal ideation among them, it was also a violation of their constitutional right to privacy.

The measure passed the Senate on March 29 in a 32-17 vote, with Sen. Wendy McKamey, R-Great Falls, the lone vote against it. In its final House vote, two Republicans – Reps. Greg Frazer, R-Deer Lodge, and Tom Welch, R-Dillon – voted against the measure.

Editor’s note: This story was updated Tuesday, April 18 to include information on the vote on the amendments in the House.

Senate Bill 99 Amendatory Veto Letter
Senate Bill 99 Amendments

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.