Missoula County weighs joining lawsuit over HB121 bathroom restrictions; attorney warns of enforcement impracticability

Missoula County Attorney Matt Jennings told the Board of County Commissioners that HB121, a state law limiting restroom use by a person's sex assigned at birth, raises serious implementation and legal problems for the county and presented options including joining the existing challenge as a plaintiff.

Jennings said a preliminary injunction was issued in May by U.S. District Judge Manada in litigation brought by the ACLU and other plaintiffs challenging HB121. He described features of HB121 that exclude transgender and intersex people from using restrooms consistent with their gender identity and said Montana courts have previously found similar laws unconstitutional on privacy and equal-protection grounds. "It basically excludes a whole class of individuals and provides that they cannot use a restroom," Jennings said.

Beyond constitutional arguments, Jennings warned that HB121's enforcement provisions would be impracticable for county operations. The statute, as described in the briefing, permits private suits against governments when a private person alleges a purported violation; that creates the risk of frequent litigation and exposes the county to attorney's-fee awards even if damages to a plaintiff are nominal. Jennings also identified conflicts with building and safety codes: converting existing multi-stall public restrooms to single-occupancy rooms to comply could violate occupant-restroom-count requirements and fire- and ADA-accessibility standards. "It's essentially impossible to comply with," he said, summarizing the practical and legal constraints.

Jennings described three options for the county: do nothing and face potential suits (and legal costs) if plaintiffs pursue claims; join the existing ACLU-led lawsuit as a plaintiff to assert county-specific harms and to seek clarity on obligations; or seek to intervene in the litigation as a narrower means to participate. He said joining as a plaintiff provides the clearest way for the county to highlight how compliance would harm county services and employees.

Commissioners expressed concern for employees and the public who use county facilities, from the courthouse to the fairgrounds and regional parks. One commissioner said the county has a duty "to make things available and accessible" for all citizens and raised the logistical impact at high-traffic venues such as the fairgrounds and sports facilities.

After discussion, the board directed the county attorney's office to prepare a formal filing and return to the commission with the proposed paperwork. Jennings said his office has the capacity to do the legal work and will coordinate with other plaintiffs as appropriate. No formal vote was recorded in the transcript; the direction on preparing a filing was captured in the meeting conversation.