Montana’s HB 446 revives centuries-old fears of “social contagion” to criminalize trans existence in public spaces.
On Friday, the Montana House of Representatives passed an extreme anti-trans bill that would criminalize trans people existing in any public space.
The indecent exposure bill, HB 446, amends the current law that requires people engaging in indecent exposure to have intent. But this new bill—which state Rep. Zooey Zephyr fought against on the House floor three days ago—states that intent is not required for trans people, “effectively [creating two separate legal standards: one for transgender people and one for everyone else,” explains journalist Erin Reed (also Zephyr’s wife).
The bill sets a dangerous precedent that harkens back to indecent exposure laws of the late 19th and early 20th century that criminalized disabled people existing in public spaces, and furthers modern fears surrounding “social contagion” of trans and queer bodies and lives.
Montana Lawmakers Codify Inequality into State Law
HB 446 builds on HB 121, a bill presented to the House this past January to reinforce that “there are exactly two sexes” and restrict trans people’s access to restrooms, sleeping areas and changing rooms in all public buildings. HB 446 takes this one step further by attempting to criminalize trans people existing in public spaces, removing the requirement of intent to “abuse, humiliate, harass, violate the dignity of, or degrade another” for trans people. The bill would codify the unequal application of the law against any person “exposing intimate parts” to someone of the opposite sex assigned at birth.
As Reed spells out, the bill would penalize a trans man taking off his shirt before going on a jog, for example, or a trans woman changing in a woman’s dressing room—restricting trans people from “exposing themselves” (including exposure that is not illegal for cisgender people) in a variety of “public places.”
As the amended bill reads, “public place” includes but is not limited to “transportation facilities, restrooms, locker rooms, dressing rooms, and showers that are designated for multi person, single-sex use, schools, places of amusement, parks, places of business, playgrounds, and hallways, lobbies, and other portions of apartment houses, multifamily dwellings, and hotels, except for rooms or apartments designed for actual residence.”
Modern Anti-Trans Legislation and the Fear of ‘Social Contagion’
For anyone familiar with disability history, the bill immediately hearkens back to unsightly beggar ordinances on the books from 1867 to 1974 throughout the United States. These ordinances were rooted in the eugenics movement of the late 19th and early 20th century, and built around an ableist construction of socially clean and pure public spaces, making it illegal for disabled people to expose themselves (or rather exist) in any public places—only applying to people deemed “diseased, maimed, mutilated, or in any way deformed.”
In The Ugly Laws, Susan Schweik explores how these laws were rooted in fears surrounding “social contagion.” This theory—first proposed as “behavioral contagion” at the same time as the social purity movements by Gustave Le Bon in 1895—argued that access to, and awareness of, a specific behavior would result in it occurring more frequently.
In the late 20th and 21st century, this theory has been revisited by far-right conservatives who use it to argue that a child who learns about LGBTQ+ identities is more likely to identify as LGBTQ+. This is a deeply offensive and problematic social construction that is still used by far-right actors today, who argue that queer or trans children are not born but rather made through contact with queer and trans people in everyday life. This is the justification used for many laws surrounding the visibility of trans and queer people—including this one in Montana—and legislation restricting access to LGBTQ+ representation in public library collections and discussions in public school classrooms.
It’s not far off from the conservative sexual legislation of the social purity movements that argued that access to information about abortion, contraceptives and pornography would lead to an uptick in their use and request.
In the late 19th and early 20th centuries, social purists campaigned against behaviors deemed immoral by largely Protestant reformers. These social purists lobbied for legislation against abortion, alcohol consumption, the distribution of contraceptives and “obscene” materials, and sex work. One of the movement’s leaders, physician Anthony Comstock, was instrumental in the passing of a federal law with his namesake in 1873 criminalizing the distribution of pornography, contraceptives and information about them, and any materials that could be used to produce an abortion.
Today, antiabortion activists are debating the resurrection of the Comstock Act of 1873, which is still in effect but has largely become dormant in the last 150 years. The law is still technically enforceable and could be used to stop the distribution of contraceptives and abortion medications and supplies through the mail and local carriers.
Modern anti-trans legislation uses some of the same language that Comstock did over 150 years ago and abstinence-only educators did over 20 years ago that access to information about sexual intercourse, contraceptives and abortion will cause people to seek them out.
Laws restricting discussions about LGBTQ+ identity, relationships and families in classrooms and books in libraries have spread across the United States, built on the same fear that discussing queer identities will “cause” children to become queer. It’s no surprise that the Comstock Act was also used to target LGBTQ+ materials deemed “obscene” distributed through the mail. And with bills like HB 446 resurrecting unsightly beggar ordinances that restrict who can appear in public, far-right actors are striving to restrict queer and trans people’s access to public spaces, but also their existence in them at all.
HB 446 is just one of a new generation of social purity laws that are being presented across the country, using fears of “social contagion” from over a century ago that still ring true for many Americans. Understanding this history is vital to unpacking the danger—often connected growing white supremacist movements—of these laws and the social fears they represent.
