Montana LGBT Laws

As at 21 January 2013, “deviate sexual conduct” is unlawful (see 45-5-505 below) [L1.1].

The Montana Annotated Code 2011. Title 45. Crimes provides: [L1.1].

45-2-101. General definitions

(21) “Deviate sexual relations” means sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal.

45-5-501. Definitions. (1) (a) As used in 45-5-503, the term “without consent” means:

(ii) subject to subsections (1)(b) and (1)(c), the victim is incapable of consent because the victim is:

(D) less than 16 years old;

45-5-505. Deviate sexual conduct. (Declared unconstitutional.)

(1) A person who knowingly engages in deviate sexual relations or who causes another to engage in deviate sexual relations commits the offense of deviate sexual conduct.

(2) A person convicted of the offense of deviate sexual conduct shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.

In September 2008, a Montana judge granted a woman joint custody of two children she and her former lesbian partner adopted when they were a couple [R1.1].

As same-sex couples cannot legally marry or be united in a partnership union in Montana, they cannot qualify for benefits available to unmarried heterosexual couples [R1.1].

Montana state offers health insurance only to employees, their spouses and children. Heterosexual couples who are not officially married but file an affidavit of common-law marriage can also qualify for benefits [R1.1].

In April 2003, the Missoula County Commission cleared the way for people in same-sex relationships to join its employee health insurance plan. The decision applies to unmarried domestic partners, which includes gay, lesbian, and heterosexual couples [R2.1].

A county worker must sign an affidavit declaring another person as his or her “domestic partner” for health insurance coverage. The two people must both be over 18 and have lived together for at least 12 months. They must also be engaged in a committed relationship and financially interdependent on each other. Domestic partners cannot be concurrently married to or separated from any other person not related by blood or marriage. The affidavit does not ask about sexual orientation or the gender of the second person [R2.1].

On 01 October 2013, the City of Missoula announced the Domestic Partner Registry was open and accepting applications from same-sex and opposite-sex domestic partners in Montana [D3.2], [R3.1].

Previously:

No municipalities were known to offer domestic partner benefits

On 17 July 2013, the ACLU and seven plaintiff couples filed an amended complaint in Donaldson and Guggenheim v. State of Montana seeking domestic partnership protections by challenging individual Montana statutes covering financial protections for police officers, worker’s compensation benefits, end-of-life decisions, financial protections during illness and more [C4.13], [R4.12].

On 17 December 2012, the Supreme Court declined 7–3 to grant an appeal in the lawsuit of several same-sex couples who sought “a general declaration of their rights and … orders enjoining the State to provide them a ‘legal status and statutory structure’ that protects their rights”, remanding the case for further proceedings [C4.11], [R4.10].

On 13 April 2012, the Supreme Court heard the appeal from the district-court dismissal in the domestic partnership spousal benefits case Donaldson and Guggenheim v. State of Montana [R4.9].

On 14 November 2011, the ACLU filed the appeal in Donaldson and Guggenheim v. State of Montana [C4.8], R4.7].

On 04 August 2011, the ACLU said it would file an appeal in Donaldson and Guggenheim v. State of Montana arguing the Montana Constitution guarantees all people, including gay and lesbian couples, should be treated equally and fairly [R4.6].

Previously:

On 19 April 2011, District Court Judge Sherlock in Helena ruled in the case of Donaldson and Guggenheim v. State of Montana against recognizing same-sex couples as domestic partnerships that would guarantee protection of the right to share healthcare information, medical insurance, and the right to privacy [R4.5].

On 27 September 2010, the city commissioners of Bozeman voted unanimously to officially support seven same-sex couples involved in the case of Donaldson and Guggenheim v. State of Montana that seeks to require the state to afford the same-sex couples the same rights as straight couples with respect to health issues and property rights [R4.3].

In July 2010, the case of Donaldson and Guggenheim v. State of Montana was initiated, seeking protection for seven same-sex Montana couples and their families under the Montana Constitution’s rights of privacy [R4.4].

In November 2002, a district judge ruled that the Montana University System policy denying health insurance benefits for partners of gay employees was not unconstitutional [R4.2].

In October 2002, a discrimination claim by two lesbian couples seeking partnership benefits was dismissed by the Montana Human Rights Commission [R4.1].

On 18 January 2016, effective immediately, Governor Steve Bullock signed ”Executive Order Prohibiting Discrimination in State Employment and Contracts” (No. 04-2016) that will protect state workers, contractors, and subcontractors from discrimination in employment as well as the provision of government services. It also calls for diversity programs designed to prevent harassment [D1.5], [R1.4].

On 22 March 2011, House Bill 516 to overturn Missoula’s anti-discrimination ordinance protecting gay people was pulled from the Senate floor due to lack of support [R1.3].

On 22 February 2011, the House approved a bill that would effectively overturn Missoula’s 2010 ordinance banning discrimination on the basis of sexual orientation and gender identity (transgender protections) by prohibiting local governments from enacting protections beyond those in the state’s Human Rights Act, which does not include sexual orientation and gender identity. The bill faces a final House vote before heading to the Senate [R1.2].

In December 2000, employment guidelines instituted by Montana Republican governor Marc Racicot prohibit discrimination against state employees based on their sexual orientation [R1.1].

On 26 August 2014, five Bozeman residents filed a complaint in the 18th Judicial District Court, Gallatin County seeking a declaration that the non-discrimination ordinance passed in June is invalid [C2.7], [R2.6].

On 12 August 2014, with Mayor Tom Hanel’s casting vote, Billings City Council voted 6-5 to reject an ordinance to ban discrimination based on a person’s sexual orientation or gender identity [R2.5].

On 05 June 2014, the Bozeman City Commission unanimously approved an LGBT-inclusive antidiscrimination ordinance. The ordinance, makes unlawful discrimination on the basis of sexual orientation, gender identity, or gender expression in employment, housing, and public accommodations and goes into effect in 30 days [R2.4].

On 04 December 2012, the Helena city commissioners gave initial approval 5–0 to an ordinance that prohibits discrimination in housing, employment and many kinds of public accommodation based on sexual orientation, gender identity, or expression [R2.3]. On 17 December 2012, the measure was passed unanimously [L2.2].

On 13 April 2010, the Missoula City Council approved an ordinance which protects residents from housing and employment discrimination based on ‘actual or perceived … sexual orientation, gender identity or expression’. The ordinance was to take effect in 30 days [R2.1]. However, see above at [R1.2].

On 27 March 2019, the Montana Human Rights Bureau found that transgender woman Eleanor Maloney experienced unlawful discrimination during her time as an employee for Yellowstone County, being denied healthcare insurance cover for sex/gender reassignment surgical procedures [C3.3], [R3.2].

In October 2002, a discrimination claim by two lesbian couples seeking partnership benefits was dismissed by the Montana Human Rights Commission [R3.1].

On 27 March 2019, the Montana Human Rights Bureau found that transgender woman Eleanor Maloney experienced unlawful discrimination during her time as an employee for Yellowstone County, being denied healthcare insurance cover for sex/gender reassignment surgical procedures [C1.4], [R1.3].

On 19 September 2017, the Montana Supreme Court ruled that the ballot statement and fiscal note of Initiative 183 (the ”Montana Locker Room Privacy Act”) must be revised. Initiative 183 would force Montanans to prove their gender before accessing facilities in public spaces [C1.2], [R1.1].

Montana law extends protections based only on race, creed, religion, color or ethnic origin [R1.1].

In 2003, the House Judiciary Committee considered House Bill 52, which would were it passed, extend protections under Montana’s hate crime law to include those intimidated or harassed based on their gender, disability or sexual orientation [R1.1].

On 27 March 2019, the Montana Human Rights Bureau found that transgender woman Eleanor Maloney experienced unlawful discrimination during her time as an employee for Yellowstone County, being denied healthcare insurance cover for sex/gender reassignment surgical procedures [C1.2], [R1.1].

On 18 April 2013, Democratic Gov. Steve Bullock signed Senate Bill 107 into law on 18 April 2013, finally removing the unconstitutional law criminalizing gay sex [R1.8].

On 10 April 2013, the state legislature passed 65–34 Senate Bill 107, which removed from the state code’s obsolete language criminalizing gay sex as “deviate sexual conduct”[R1.7].

See 2. Courts & Tribunals

Previously:

On 09 April 2013, in a 64-36 vote the House endorsed Senate Bill 107 that would repeal an obsolete state law criminalizing gay sex. The Bill needs to pass a final vote before being sent to Democratic Gov. Steve Bullock [R1.6].

On 20 February 2013, the Senate voted 38–11 in favour of SB 107, a bill to “generally revise deviate sexual conduct laws” or to decriminalize homosexuality. The Bill is expected to “die” in the House judiciary committee [R1.5].

On 18 March 2011, House Republicans voted 13–7 to keep an obsolete state law that criminalizes gay sex – even though the courts have ruled it unconstitutional and unenforceable [R1.4].

On 23 February 2011, the Senate, with bipartisan support, voted 41–9 to remove the state’s anti-sodomy law from the books. The measure will go through one more vote, largely procedural, in the Senate before moving to the House [R1.3].

In September 2010, Senator John Brueggeman was working to remove a law from the books that criminalizes homosexual acts in Montana [R1.2].

In 1999, a bill to erase Montana’s unconstitutional law against homosexual sex failed on a tie vote in the House. Representatives voted 50–50, killing the bill that would have removed the law overturned by the Montana Supreme Court in 1997 [R1.1].

On 26 June 2003, the US Supreme Court ruled in Lawrence & Garner -v- Texas that a similar the law in Texas was an unconstitutional violation of privacy. The ruling is widely considered to have nullified or invalidated the Montana law and all similar laws across the country [C2.3].

On 02 July 1997, the Montana Supreme Court in Gryczan v. State of Montana, overturned the state’s sodomy law based on the state’s constitutional right to privacy, but Montana has not removed the statute from its books [C2.2], [R2.1].

No one in the state apparently has ever been prosecuted under the law, lawmakers said.

In 1997, the Montana Annotated Code 2009: Title 40. Family Law, Chapter 1. Marriage, Part 4. Validity of Marriages – Declaration of Invalidity was amended providing –

40–1–401. Prohibited marriages – contracts.

(1) The following marriages are prohibited:

(a) … (c)

(d) a marriage between persons of the same sex.

(2) … (3)

(4) A contractual relationship entered into for the purpose of achieving a civil relationship that is prohibited under subsection (1) is void as against public policy [L1.3].

On 09 June 2012, the Montana Democratic Party platform convention adopted this new language:

“We support repealing Section 7, Article 13 of the Montana Constitution. All adults should have the right to legally marry another adult of their choice, regardless of sex or gender. We believe same-sex spouses should have the same legal benefits, protections and responsibilities granted to all those who marry” [R1.2].

On 02 November 2004, voters approved an amendment to Section 7 of the Constitution that now provides: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state” [L1.1].

On 09 February 2015, the US Circuit Court of Appeals for the Ninth Circuit granted the Montana attorney general’s request to put a hold on his appeal in Rolondo v. Fox, the court ruling that Montana’s ban on same-sex is unconstitutional, because the Supreme Court plans to take up the issue [R2.11].

On 21 November 2014, the US Court of Appeals for the Ninth Circuit made a Time Schedule Order in the Rolondo v. Fox same-sex marriage case. Arguments are due 27 February [C2.10], [R2.9].

On 19 November 2014, US District Court Judge Brian Morris ruled Montana’s same-sex marriage ban unconstitutional, ordering State officials not to enforce the ban. There is no stay, the injunction takes immediate effect [C2.8], [R2.7].

On 14 November 2014, US District Judge Brian Morris vacated the scheduled hearing of oral arguments, the parties agreeing the court had enough information to decide the case without the formal hearing. Montana is in the 9th Circuit Court of Appeals jurisdiction where similar bans in Idaho and Nevada were struck down by the Court on 07 October [R2.6], [R2.3].

On 22 October 2014, the same-sex marriage case (below) reportedly would be heard by Judge Brian Morris in Great Falls on 20 November [R2.5].

On 07 October 2014, the US Court of Appeals for the Ninth Circuit struck down same-sex marriage bans in Idaho and Nevada, finding that the laws at issue violate the Equal Protection Clause of the Fourteenth Amendment. Montanta is within the Circuit Court’s jurisdiction [C2.4], [R2.3].

On 21 May 2014, the ACLU filed a complaint in the US District Court, Montana on behalf of four couples challenging the ban on same-sex marriage and the recognition of out-of-state marriages [C2.2], [R2.1].

Montana law does not address adoption by same-sex couples but allows stepparents (legal or assumed) to adopt children [R2.1].

On 06 October 2009, the Montana supreme court ruled 6–1 in favor of a lesbian who sued her former partner for parental rights of the children they helped raise together [R2.2].

On 29 September 2008, a Montana judge granted a woman joint custody of two children she and her former lesbian partner adopted when they were a couple [R2.1].

On 01 October 2013, state Revenue Director Mike Kadas told the Legislature’s Revenue and Transportation Interim Committee that the Montana Revenue Department cannot follow the federal Internal Revenue Service guidance issued recently that recognized married same-sex couples for federal tax purposes, because of the state constitutional provision that defines marriage as between a man and a woman [R1.1].

The law defines “partners” in the state’s partner or family member assault law as “spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex” [R2.1].

On 24 October 2012, District Judge James Wheelis ruled the state’s definition of partners relating to partner or family member assault cases, is unconstitutional because it does not offer equal protection to victims in a same-sex relationship, remanding the case back to the Lincoln County Justice Court with the direction that it proceed under the law, modified by striking the words “with a person of the opposite sex” [R2.1].