On Friday, the U.S. District Court for Montana issued a preliminary injunction preventing Montana’s attorney general and superintendent of public instruction from enforcing the state’s House Bill 359, designed to restrict drag performances throughout the state. Chief district judge Brian Morris granted the preliminary injunction.
In his decision, Morris wrote that “HB 359 targets protected speech and expression. The statutory text and legislative history evince anti-LGBTQ+ animus. No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms. HB 359’s terms prove vague and overbroad, chilling protected speech and creating a risk of disproportionate enforcement against trans, Two-Spirit, and gender nonconforming people.”
Plaintiffs included the organization Montana Pride and the bookstore Montana Book Co. (Helena), along with nine other businesses, theaters, community centers, and individuals. They argued that HB 359 violates the U.S. Constitution’s first, fifth, and 14th amendments.
In the original action on July 7, the plaintiffs sued Montana’s state attorney general Austin Knudsen; superintendent of public instruction Elsie Arntzen; Butte–Silver Bow chief executive J. P. Gallagher; and the City of Helena, which “evaluates and issues permits for events held within city limits.”
The plaintiffs filed the lawsuit while Montana Pride was applying for permits for its 2023 summer events. Court documents called Montana Pride’s permit applications “functionally identical” to those approved by the city of Helena in 2022, when Montana Pride drew more than 15,000 participants. Leaders of Montana Pride feared HB 359—which took effect in May—would undermine their plans for a parade, drag performances, rally, and educational workshops.
According to the ruling, “the City of Helena urged the court to block enforcement of HB 359 in time to allow Montana Pride to proceed,” and a temporary restraining order was granted on July 28. Montana Pride’s 30th anniversary festival took place July 30–August 6, and one of the counts in the suit was dismissed by the court in September.
In addition to businesses advocating freedom of expression, two personal plaintiffs took part in the lawsuit. Adria Jawort, a Two-Spirit member of the Northern Cheyenne Tribe and a transgender woman, joined because her scheduled June presentation on Indigenous Montana and trans history had been canceled by the Butte Public Library; the city–county of Butte–Silver Bow decided her lecture posed “too much of a legal risk” under HB 359. Rachel Corcoran, a Billings public school instructor who wears costumes as part of her teaching, likewise joined the suit out of concern that her educational role-playing could be construed as “drag” under the law.
HB 359 was introduced on January 29 by Rep. Braxton Mitchell, who said in April that HB 359 would “protect children from hypersexualized events that are meant for adults, not children” and that might give children “an inadequate understanding of gender roles and experiences.” The state legislature passed the bill on May 11, and HB 359 was signed into law by Gov. Greg Gianforte on May 22.
As stated in Morris’s order granting the preliminary injunction, the text of HB 359 "criminalizes a wide range of conduct, including ‘drag story hours’ in schools and libraries that receive any amount of state funding,” and “prohibits minors from attending certain ‘sexually oriented shows.’”
The judge also wrote in the finding that “the Attorney General’s authority to prosecute under HB 359 has not been tested,” but “the question of whether the Attorney General does indeed possess legal authority to prosecute under HB 359 might remain open” until such a case was brought.
The judge agreed with the plaintiffs that HB 359’s threat of prosecution causes “irreparable harm,” including the loss of business and the risk of having professional licenses revoked. In addition, if the attorney general or school superintendent were to exercise HB 359, “the hassle and embarrassment of even a meritless proceeding presents a potential occupational penalty,” such as job loss for the person allegedly in violation.
Montana Book Co.’s Chelsia Rice, who co-owns the bookstore with spouse Charlie Crawford, celebrated the preliminary injunction. “Our bookstore celebrates the diversity that makes Montana special," Rice said. “We are a space that will always amplify LGBTQ+ voices, not silence them. The court’s order today ensures that we will not be prosecuted for doing so.”
With the preliminary injunction, four of the five counts in the suit remain unresolved. Two counts related to Jawort’s canceled lecture have the potential to proceed to a jury trial, while two counts related to free speech and to due process are to be revisited.
