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Transgender Bathroom Ballot Initiative Suffers Setback in Montana

If passed, the ballot initiative would "banish transgender Montanans from full and equal participation in public life," the Montana ACLU said.

FILE - In this Aug. 23, 2007, file photo, a sign marks the entrance to a gender-neutral restroom at the University of Vermont in Burlington, Vt. AP

HELENA, Mont. — The Montana Supreme Court ordered the state attorney general to rewrite ballot language for an initiative that would require people to use public restrooms and locker rooms designated for their gender at birth.

The court ruled Tuesday in a challenge from the American Civil Liberties Union of Montana, saying the language did not include the initiative's specific definition of "sex" and was otherwise vague.

The justices agreed with the ACLU that the ballot language does not specify that the law would apply to local government buildings and public education facilities and does not include how much it would cost them to comply.

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It also isn't clear in the language that people could sue the state for emotional or mental distress if they encounter a transgender person in a public bathroom and the facility had not taken reasonable steps to prevent it, the court said.

Caitlin Borgmann, executive director of the Montana ACLU, said the initiative, if passed, would "banish transgender Montanans from full and equal participation in public life."

It's similar to a measure passed by North Carolina.

The conservative Montana Family Foundation has until June to gather nearly 26,000 signatures to get the initiative on the November 2018 ballot. State lawmakers rejected a proposed referendum on the issue this year.

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Foundation President Jeff Lazloffy said the organization is happy with the decision and that the issues raised by the ACLU were "fairly minor." But he said it may not be possible to determine the financial effects of the initiative.

"We need to come up with a solution that works for everyone, or for the greatest number of people," Lazloffy said Wednesday, adding that he's confident the effort will pass.

To allow anyone to go into any protected facility opens it up to people who say they identify as the opposite sex just to get access, Lazloffy said.

The ACLU of Montana called the ruling an important step toward defeating the initiative.

"The Supreme Court has ensured that when all Montanans vote on (the initiative) 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," said Alex Rate, ACLU legal director.

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