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Court grants temporary restraining order, pride goes on

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News from Upper Seven Law

HELENA — A federal district court in Helena issued a temporary restraining order on Friday, July 28, ensuring that Montana Pride events will go forward without disruption or fear of liability beginning July 30.

A diverse group of plaintiffs—including a public-school teacher, an advocate for trans rights, businesses, theaters, and nonprofit organizations—challenged House Bill 359 (“HB 359”). By prohibiting a wide range of expression, including dressing flamboyantly in libraries and revealing prosthetic cleavage, the law is not only discriminatory but also wildly vague and over broad. Indeed, the City of Helena expressed concerns that the law put it in the impossible position of either violating its citizens’ First Amendment rights or subjecting its employees to possible liability for allowing drag performances to go forward.

The Court granted the plaintiffs’ request for a temporary restraining order, preventing the law from being enforced until a hearing on a preliminary injunction next month. 

Among other problems with the law, the Court observed, “Authorizing members of the public and state authorities alike to draw . . . distinction[s] with respect to others’ bodies likely would require identity-based and gender-based discrimination.”  The Court also compared HB 359 to a drag ban recently enjoined in Tennessee, quoting its sister court’s conclusion that the Tennessee drag ban “reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights,” and noting that HB 359 “appears to suffer from similar ‘constitutional maladies.’”

“Drag is definitionally political and artistic speech,” said Diana Bourgeois, president of the Imperial Sovereign Court of the State of Montana. “The court’s order today protects our right to be commentators and artists and to create a safe, joyful, and welcoming environment through our expression.”

“The importance of feeling safe in our community cannot be overstated,” said Chelsia Rice, co-owner of the Montana Book Company. “HB 359 is an attack on the LGBTQ+ community. We will always be a safe place for our community—and it is a relief to know that the courts will back us up.”

“This injunction is a tremendous relief for organizations like The Myrna Loy who are trying to serve our community with arts and culture experiences but are confused about how to navigate the unintended consequences of this law,” said Krys Holmes, Executive Director of The Myrna Loy.

“HB 359 is an affront to the First Amendment,” said attorney Niki Zupanic, Deputy Director for Upper Seven Law. “Montanans of every background and identity must be free to express themselves without fear of state retribution.”

Montana nonprofit law firm Upper Seven Law represents the plaintiffs.

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