The Montana Supreme Court has ordered the Office of Attorney General Tim Fox (R) to rewrite language for the ballot statement and fiscal note associated with an anti-transgender ballot initiative that voters will decide on during the 2018 election.

Initiative 183 would force Montanans to prove their gender before accessing restrooms, locker rooms, or other changing facilities. Specifically, the measure would restrict transgender people to using only those facilities that match their biological sex at birth. It was proposed and drafted after the Republican-dominated legislature failed to pass a stand-alone bill limiting transgender access to public restrooms.

The state Supreme Court found that the ballot statement and fiscal did not adequately explain the impact and potential economic consequences of passage of the initiative.

The ACLU of Montana had challenged the initiative, arguing the exclusion of the measure’s economic consequences and discriminatory impact would not allow voters to make an informed decision on the matter. The Supreme Court Justices concurred with that interpretation of the ballot statement’s language, even as they noted that state law required the statement to be no longer than 135 words.

This Court has upheld ballot statements approved by the Attorney General as long as they employ ‘ordinary plain language, explaining the general purpose of the issues submitted in language that is true and impartial, and [are] not argumentative or likely to create prejudice either for or against the issue.

As long as the Attorney General’s wording ‘fairly states to the voters what is proposed within the Initiative, discretion as to the choice of language . . . is entirely his.’ However, a court must intervene when a ballot statement’s language would ‘prevent a voter from casting an intelligent and informed ballot.'

--The opinion

The original description did not mention the word ‘transgender,’ but it is undeniable that I-183 will operate to banish transgender Montanans from full and equal participation in public life.

Moreover, I-183 carried significant financial risk for Montana’s state and local economies. North Carolina took a projected $3.76 billion hit to its economy when it passed a similar anti-transgender law. Montana voters are entitled to cast informed ballots. Thanks to the Supreme Court’s ruling, the true effect of the initiative must now be made clear to voters.

--Caitlin Borgmann, ACLU of Montana

The Supreme Court has ensured that when Montanans vote on I-183 and decide whether or not to legalize discrimination, they will be informed about the societal and economic costs for regulations that target our transgender friends and neighbors. Rest assured, the ACLU of Montana will continue to investigate any and all avenues available to ensure the I-183 never becomes law.

--Alex Rate, ACLU of Montana

The conservative Montana Family Foundation has until June to gather nearly 26,000 signatures to get the initiative on the November 2018 ballot.

It may not be possible to determine the fiscal impacts.

We need to come up with a solution that works for everyone, or for the greatest number of people.

--Jeff Lazloffy, Montana Family Foundation

The Montana Supreme Court also stated that the language did not go far enough to protect against legal action by anbody claiming “emotional or mental distress” if they come across a trans person.

Also included in the ruling: the justices determined that the word "a" means "one."

The Montana Supreme Court also took issue with the fact that the ballot states there must be “a” protected facility for use by only members of one sex. The justices determined that “a” connotes a single bathroom, which would allow only members of one sex and not the other to have access to a “protected facility.”