Attorney General Tim Fox says a group of transgender plaintiffs shouldn’t be allowed to challenge the constitutionality of a proposed “bathroom bill” unless voters pass the ballot initiative I-183 next year, even as city governments across the state are joining the lawsuit brought by the ACLU.

Fox’s office moved Dec. 8 to dismiss the ACLU suit in Cascade County District Court, calling it an “unprecedented” effort to strike down a citizen initiative before supporters even gather enough signatures to place the measure on the November 2018 ballot.

On its surface, the argument is about money. The state claims it would waste “taxpayer resources” defending proposed laws, while the ACLU, in a response filed Dec. 21, argues that the real waste of time and money would be to allow voters to cast ballots for a law that is destined to be struck down in court.

But both sides also foresee consequences of the court’s decision that go beyond taxpayer expense. The public campaign alone for I-183, which seeks to prohibit trans people from using bathrooms corresponding to their gender identity, will expose trans people to months of “devaluing messages,” the ACLU claims. North Carolina saw a spike in calls to suicide hotlines in the weeks after its bathroom bill was passed, the plaintiffs note. They say Montana could see a similar situation should the courts decline to intervene. “The purpose of this lawsuit is to save lives,” ACLU legal director Alex Rate wrote.

The state will face a difficult choice if the ACLU’s suit proceeds, because, as the AG’s brief acknowledges, the state isn’t obligated to defend the merits of proposed laws, potentially leaving I-183 “defenseless” in court. That’s likely to be an unappealing prospect for an office whose solicitor general, Dale Schowengerdt, made his name representing the Christian conservative firm Alliance Defending Freedom. While working for ADF in 2014, Schowengerdt lobbied a local city council in Kansas to oppose a nondiscrimination ordinance by telling them it could be used to protect trans people who assault women and children in restrooms.

But such fearmongering, echoed in pro-I-183 rhetoric by sponsor Montana Family Foundation, isn’t persuading local governments here. In December, the Montana League of Cities and Towns voted to intervene in the lawsuit on behalf of the plaintiffs, joining Missoula, Bozeman and Helena. The League, which represents 129 municipalities statewide, is concerned about the financial burden the initiative would place on local governments, Deputy Director Kelly Lynch says.

Those potential burdens were outlined in an October letter from Missoula Mayor John Engen that prompted the League’s involvement. They include the costs of reconfiguring public restrooms and defending local governments in court against alleged violations of I-183. But as Engen said when the lawsuit was filed, his concern about the initiative is about more than dollars and cents.

“And finally, this initiative is mean-spirited and is in direct opposition to Missoula’s values,” he said.

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