This story is adapted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.
Having lost a court fight over an attempt to establish restrictions on college-level transgender student athletes through state legislation, Republican Gov. Greg Gianforte has shifted his party’s efforts to a more administrative venue: the Montana Board of Regents.
To recap, Republican lawmakers in 2021 passed a law prohibiting transgender women and girls from competing on school sports teams that align with their gender identity. The law, House Bill 112, was challenged by a coalition of plaintiffs including university faculty, a former state constitutional convention delegate and the Montana Federation of Public Employees. A district court judge ultimately deemed HB 112 unconstitutional in 2022, and the Montana Supreme Court upheld that ruling last month.
But the grounds on which that decision was reached left a crack Gianforte now seeks to widen. Both courts determined that the law infringed on the Board of Regents’ constitutional authority to govern Montana campuses independently from elected officials. So on May 14, that’s where Gianforte turned.
In a letter addressed to the seven-member board and copied to Commissioner of Higher Education Clayton Christian, Gianforte urged the regents — four of whom he appointed — to enact the law he signed three years ago. He also tied his request to a recent expansion of Title IX protections by the Biden administration to include sexual orientation and gender identity, which has been criticized by state Superintendent Elsie Arntzen and Attorney General Austin Knudsen, both Republicans.
“Do not let a loud vocal minority dissuade you from doing the right thing for girls and young women,” Gianforte wrote in his letter. “They represent a decidedly small minority.”
MFPE President Amanda Curtis said in a May 17 statement that her organization’s members “respect the constitutional authorities” of elected and appointed officials and were “proud” to have helped the regents push back against “legislative overreach.”
“As regents consider sensitive policy requests like the governor’s here,” Curtis said, “we hope the voices, experiences and safety of those of us who go to campuses every day to work and learn carry the most weight.”
A spokesperson for Christian’s office, Leanne Kurtz, told MTFP via email May 16May 16 that the commissioner and regents are interested in working with Gianforte to evaluate his request and its potential impacts on collegiate athletics in Montana. Kurtz added the commissioner’s office has not made any formal inquiries into how many students might be affected by such a policy.
“We anticipate an ongoing discussion around Title IX with the governor and other stakeholders,” Kurtz wrote. “If it is scheduled for a future board meeting, it will be posted with the agenda and properly noticed.”
