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The debate over sex education in Montana classrooms flared up anew this week as a coalition of students, teachers, school counselors and school psychologists launched a bid to overturn a three-year-old sex ed law. The 2021 Legislature’s Senate Bill 99 set new requirements for educators to notify parents of any discussion involving human sexuality, reproductive rights, sexual orientation or gender identity. The plaintiffs argue those requirements are confusing and unconstitutional.
The lawsuit, filed Tuesday by the ACLU of Montana, also criticized state-level leaders for allegedly failing to provide public school districts with adequate guidance on how to comply with the notification law. Do lessons on “intimate partner relationships” extend to discussing Romeo and Juliet? Should teachers notify parents about history lessons that mention Nazi oppression of lesbian and gay Germans, or about government class discussions on U.S. Supreme Court decisions involving gender and sexual reproduction? Absent clearer direction, the complaint says, Montana educators have been left guessing when and in what situations SB 99 applies.
The lawsuit is the second time in recent weeks that state Superintendent Elsie Arntzen’s handling of state policy at the Office of Public Instruction has come under legal fire. Last month, plaintiffs in a separate lawsuit against Arntzen accused her agency of failing to properly implement a 2023 law establishing public charter schools, alleging that failure threatened to stymie local efforts to open the first wave of those schools by this fall. Lawmakers in Helena leveled the same accusation weeks earlier in a letter formally chastising Arntzen.
Criticism of Arntzen, a Republican who is coming to the close of her second four-year term as the state’s top K-12 education leader, is hardly new. Leaders of Montana’s largest school districts co-signed a letter in late 2021 expressing “no confidence” in her leadership at OPI, citing the high level of staff turnover at the agency and a resulting loss of institutional knowledge. Members of the self-styled parental rights movement, incensed by pandemic-era mask mandates and a perceived “radical agenda” tied to school equity policies, responded by leaping to her defense.
Back in 2021, Arntzen greeted the grim evaluation openly, acknowledging her agency had room to improve and saying she welcomed an “increased mutual dialogue.” Her posture is markedly different now, as, facing term limits in her current role, she makes a bid in the Republican primary for Montana’s eastern congressional district.
This year, Arntzen has denounced critiques as politically motivated attacks by legislative “kangaroo courts” and “woke organizations.” In email statements to Montana Free Press this year, she’s reaffirmed her conservative leanings and her commitment to “fiercely defend parental rights.” Meanwhile, school districts continue to cite specific operational challenges tied to their concerns with her office, and the debate is heading full-steam out of the court of public opinion and into the actual courtroom.
—Alex Sakariassen, Reporter
Following the Law ⚖️
Meanwhile, legal action over a different Senate Bill 99 — the one the Legislature passed in 2023, rather than 2021 — is still pending in a different part of the judicial world.
We’ve written plenty about 2023’s Republican-backed SB 99, but to recap: The law would broadly prohibit the medical treatment of gender dysphoria for transgender youth, including puberty blocker prescriptions, hormone therapy and exceedingly rare surgeries for teenagers. It’s currently enjoined (declared unenforceable) while litigation continues, under a September ruling from a state district court judge in Missoula.
The state attorney general’s office has appealed that injunction to the Montana Supreme Court, where the state and attorneys for the plaintiffs, including the ACLU of Montana, have filed their respective arguments for why the law should or should not take effect. In the last few weeks, the case has also attracted the attention of medical professionals and high-profile advocates for LGBTQ rights.
The groups submitting “friend of the court” or amicus briefs include biomedical ethicists and a group of medical associations that, when listed individually, take up nearly an entire page of one filing. Another brief comes from Hollywood actor Elliot Page and 56 other transgender adults testifying to how gender-affirming health care has benefitted their lives — a direct rebuttal, their brief says, to the state’s arguments that treatments for gender dysphoria are dangerous and pose “grievous harms” to minors.
“The State ignores the lived experiences of individuals such as amici to support a narrative that [gender] transition ruins lives,” states the filing from the transgender adults. “This is distortion, not reality, as evidenced by the vibrant lives amici lead within their professions, families, communities, and faiths.”
Other signatories to that brief include Lilly Wachowski, who co-directed “The Matrix,” astrophysicist Rebecca Oppenheimer, game designer Naomi Clark and professional rock climber Cat Runner. Many described their process of transitioning, including accessing medication or surgery, as profoundly positive.
“Most amici had a strong sense of who they were and what they needed at a young age, and amici who began treatment while young universally described profound joy, and no regret, for having transitioned,” the brief said. “Many amici who began receiving gender-affirming healthcare as adults strongly believe that earlier care would have prevented years of suffering and enhanced their well-being.”
The only amicus brief filed so far in support of the law is from the Montana Family Foundation, a conservative faith-based policy group. That brief, like the state’s arguments, casts the science around puberty blockers and hormone treatments for gender-dysphoric trans youth as “unsettled.”
“[P]uberty blockers, cross-sex hormones, and surgical intervention are not proven to prevent psychological stress, and in fact, pose substantial risk,” attorneys for the foundation wrote.
The court has not yet stopped accepting amicus briefs and has not indicated the next steps in the ongoing appeal.
— Mara Silvers, Reporter
Glad You Asked 🙋🏻
A reader emailed us about the story we published last week on the Snowy River carbon sequestration project proposed for land administered by the Bureau of Land Management, asking why the project developer is eyeing public land. They wondered: Are there no private lands suitable for such a project?
We can’t speak for project developer Denbury (or ExxonMobil, its parent company), but energy experts we’ve contacted hypothesize that the answer has to do with pore space — the empty space in the ground between sediment particles and in air bubbles trapped inside rocks.
In Montana, like most U.S. states, pore space ownership correlates with surface ownership. That’s a distinction from mineral rights, which can be “split,” or held by different owners. Developing a large project is easier in places with consolidated land ownership because there are fewer entities negotiating the terms of an agreement.
And Snowy River is big. Denbury aims to inject 150 million tons of carbon dioxide into pore space below about 102,000 acres of federally owned land over a 20-year period. (The project also encompasses smaller chunks of land owned by the state of Montana and one private property owner.)
How the BLM would be compensated for using public land pore space for carbon sequestration projects remains to be seen, but Fred McLaughlin with the University of Wyoming’s Center for Economic Geology Research said clarity on that question should be coming soon.
McLaughlin told MTFP Thursday that BLM offices in Wyoming have fielded three carbon sequestration proposals. Agency employees, he said, are working through final rules on a compensation framework.
McLaughlin added that he anticipates there will be a leasing fee associated with the use of BLM’s pore space, though it is likely to vary from project to project.
“That is a resource and because of that it does have a monetary value,” he said.
—Amanda Eggert, Reporter
Your Two Cents 
As of April 12, the Montana secretary of state has given seven ballot initiative campaigns the go-ahead to begin collecting the signatures needed to qualify their respective issues for the November ballot. Each issue must collect tens of thousands of signatures across Montana before the June 21 deadline.
We’ve been seeing clipboard-toting signature gatherers around downtown Helena, which has us curious about what’s happening in other parts of Montana. We want to know: Where have you been intercepted by signature gatherers? What issues were they advocating for? How did they describe their initiatives and answer your questions? And, most importantly, what questions do you still have about the proposals that are currently circulating — or the ballot collection process in general?
We’d love your insight and will do our best to answer your questions in future coverage. Drop us a line at tips@montanafreepress.org.
—Mara Silvers, Reporter
Hot Potato 🥔
The Montana Public Service Commission this week fielded comments from more than 80 people weighing in on a petition that asks the PSC to incorporate climate impacts into its regulatory oversight of monopoly utility companies.
Most comments came from Montanans who packed the commission’s chambers Monday to ask the state’s utility board to factor in the social, economic and environmental costs of greenhouse gas emissions as it regulates shareholder-owned power companies. Proponents, many citing a district court judge’s ruling for plaintiffs in the Held v. Montana youth climate lawsuit, pointed to climate change’s impacts on their livelihoods, health and recreational traditions. They also argued that considering climate impacts will lower customer bills by forcing for-profit utilities to give fuel-free solar and wind technologies a closer look.
Opponents offered a variety of takes on the proposal, with some expressing concern over the potential job losses and customer costs they said could stem from a rapid shift away from fossil fuels. Others went so far as to assert that Montana’s climate isn’t actually changing.
Jeff Smith with climate advocacy group 350 Montana argued that the barriers to clean energy adoption in Montana are not “technical or economic, but political and social.”
“With your leadership, Montana could become the first state in the union to generate all of its electricity from clean, renewable energy,” Smith said.
Proponent Max Scheder-Bieschin argued that the PSC could push NorthWestern Energy, the state’s largest power company, to be more proactive on climate action. He specifically criticized the company for not having renewable energy experts on its senior manager roster despite rapid growth in renewables nationally and for planning to add more coal-fired power to its portfolio while other regional utilities go all-in on Montana wind farms. (NorthWestern, which has committed to reaching “net zero” carbon emissions by 2050, maintains that fossil fuel-powered generation remains a necessary tool for ensuring grid reliability.)
Petition opponent Charles Robison with the Montana Chamber of Commerce said he’s “especially concerned about low-income Montanans and Montana businesses,” and argued that it’s “really not practicable” to quantify the social costs of greenhouse gas emissions “with real precision.”
Amanda Frickle with the Montana AFL-CIO, said the heart of the matter “is not about climate change — whether it’s happening or whether it’s destructive,” but rather “who should pay for the cost of climate change.” Frickle said shifting away from fossil fuels would result in massive job losses and urged the commission not to accept the petition on those grounds.
Other opponents, however, suggested that carbon dioxide, the most common greenhouse gas, is a “miracle molecule” that should be celebrated for its ability to spur crop growth and increase soil moisture rather than “demonized” and regulated.
Gregory Whitestone, executive director of the CO2 Coalition, further argued that Montana’s snowpacks are not shrinking and that wildfire activity in the state has not increased over the past 100 years. That assessment contradicts findings by, among others, the U.S. Environmental Protection Agency and the Montana Climate Office.
The CO2 Coalition, a nonprofit that rejects the scientific consensus surrounding carbon emissions’ impacts on climate change, had been invited to present Monday at the commission’s request.
The commission is expected to issue a decision on the petition by the end of the month. If it decides to move forward with rulemaking, it will have another 60 days following that to craft rules.
—Amanda Eggert, Reporter
Highlights ☀️
- Publicly traded companies like Bridger Aerospace, founded by U.S. Senate candidate Tim Sheehy, are required to report detailed financial information to the U.S. Securities and Exchange Commission. As Arren Kimbel-Sannit reported this week, the company’s 2023 earnings report did not paint a rosy picture of its financial health.
- Sheehy, the leading Republican challenger to Democratic Sen. Jon Tester’s re-election bid, was also the subject of a Washington Post report this week exploring the inconsistent accounts he’s given about a gunshot wound he says he received in combat in Afghanistan. Notably, Sheehy told the national newspaper he lied to a Glacier National Park ranger about a 2015 incident when he was cited for accidentally shooting himself inside the park (he now says the accidental shooting was a cover story he told in an attempt to avoid scrutiny of a 2012 combat wound he hadn’t reported to superiors). For MTFP, Arren Kimbel-Sannit reported Friday on the response to the Post’s coverage, including how right-wing influencers and media outlets have lept to Sheehy’s defense.
- In other news, Montana lawmakers are bullish on the prospect of extracting rare earth elements from Butte’s Berkeley Pit.
On Our Radar 
Amanda — In my attempt to squeeze in a few more days of spring skiing, I’ve regularly been consulting On the Snow’s database of Montana ski areas’ projected closures. Weather can make those timelines pretty fluid, so I’ve really appreciated the regularly updated info on that site.
Alex — Four-day school weeks are drawing increased attention from districts around the state. As the Flathead Beacon reported, officials in a rural Flathead County district voted this week to adopt such a schedule, citing the potential upsides for students, teachers and the district’s budget. But the motion didn’t pass without criticism from parents nervous about finding childcare to fill the resulting gap.
Arren — The Washington Post followed up on its story about U.S. Senate candidate Tim Sheehy’s gun wound with another piece digging into his record as a Navy SEAL.
Brad — It’s a rare week these days when readers don’t see another news story addressing Montana’s convoluted Medicaid “unwinding,” the bureaucratic process by which the state is redetermining which enrollees are eligible for the public health care program. But this week Missoula’s The Pulp reported something I hadn’t seen: a view of the process from the perspective of a blind Missoula woman who has been a longtime Medicaid beneficiary, as well as the friends who rallied to help her navigate a system that almost seemed designed to fail her.
JoVonne — A former New York teacher reunited with former students to watch this week’s solar eclipse. The New York Post reported that Patrick Moriarty promised his science students starting in 1978 that he would host an eclipse-watching party this year — and about 100 of his students showed up.
Mara — Two of Montana’s most prominent Republicans will get a reelection boost from Donald Trump Jr. in late April, according to reporting from the Daily Montanan’s Blair Miller. The former president’s son is scheduled to appear alongside Gov. Greg Gianforte and U.S. Rep. Ryan Zinke at a fundraiser on the University of Montana campus on April 28.
Eric — Park City resident Mike Kinsey lost his home to the 2022 Yellowstone River flooding. This month, the muscle power of 150 volunteers helped him carry a surviving garage on his property to a new foundation, a process lovingly documented by Billings Gazette photographer Amy Nelson.
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