The Montana House on Monday rejected an amendment to a bill that would ban transgender women from playing on women's sports teams, sending the legislation to a conference committee where House and Senate members will hash out their differences.
The vote comes on the same day the NCAA released a statement saying it supports transgender athletes and that championship games would be held only in locations "free of discrimination.”
"When determining where championships are held, NCAA policy directs that only locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination should be selected," the statement reads. "We will continue to closely monitor these situations to determine whether NCAA championships can be conducted in ways that are welcoming and respectful of all participants."
As he has before, Rep. John Fuller, the Whitefish Republican sponsoring the bill, objected to the characterization of his legislation as discriminatory.
"House Bill 112 is not discriminatory in any shape, fashion or form," Fuller said in a phone call Monday. "Athletes are allowed to participate in the sport of their sex determined at birth. We have all kinds of requirements to make athletics fair. We have age, we have weight, we even have height."
Fuller said he didn't think the NCAA statement Monday would amount to action, but if it did that Montana could sue and be victorious.
"I would venture to say the NCAA will be slapped with a lawsuit from the attorney general of the state of Montana defending the rights of Montana athletes to participate equally and fairly," Fuller said.
He and supporters of the bill have said it's meant to protect women participating in sports from males, who they say are physically superior to women.
For its part, the state's university system had already voiced concern about the loss of championship games before Monday's announcement from the NCAA.
"Given this history, if HB 112 becomes law it could prevent UM and MSU’s ability to host NCAA FCS football playoff games, which are NCAA championship events," reads a fact sheet prepared by the Office of the Commissioner of Higher Education and provided to the Senate Judiciary Committee by Jean Gee, senior associate athletic director at the University of Montana on March 17 when the committee heard the bill.
"It could also prevent UM and MSU’s ability to host any conference championship events in impacted sports."
The NCAA's policy for transgender athletes differs greatly from what Fuller proposes in HB 112.
The association's policy says a trans women student-athlete who is being treated with testosterone suppression medication for one calendar year may compete on a women's team.
Fuller on Monday said that policy led the NCAA to lose its credibility and will destroy women's athletics.
"There's two things implicitly wrong with that," Fuller said. "First is that's an admission of the physical advantages that males have over females. ... (and) it's maddening that these athletes take a drug that may have lifelong consequences that we don't even know what will happen."
Hormone therapy is done in consultation with a medical professional.
The amendment to Fuller's bill the House rejected Monday would invalidate HB 112 if it becomes law and the federal government objects to the law as discriminatory.
After taking office, Democratic President Joe Biden issued an executive order saying his administration would pursue enforcement in the case of discrimination based on gender identity. Sen. Dan Salomon, the Ronan Republican who brought the amendment, said he was concerned Montana could lose hundreds in millions in federal funding if challenged by the federal government.
Fuller said on the House floor he wants to change the amendment to allow for the law to stand while the state would go through an appeals process in the case of potential litigation. That could take up to two years, he said.
In an emailed statement Monday, Helen Thigpen, deputy legal counsel for the Office of the Commissioner of Higher Education, said again it opposes the bill.
"OCHE has communicated its concern about the potential loss of playoff competitions in Montana. The NCAA’s statement issued today again highlights this concern" Thigpen wrote.
Fuller argued that the NCAA did not single out Montana.
"If the NCAA wishes to make a statement, you notice that statement said nothing about any authority or attempting to deprive (Montana) of any post-season opportunity," Fuller said.
More than 20 other states are considering similar legislation, the Associated Press reported Monday. Arkansas, Tennessee and Mississippi have already passed bills. Another in Idaho has been blocked by a federal judge pending further legal action.
When North Carolina passed its controversial "bathroom bill," which restricted the use of facilities based on biological sex, the NCAA blocked all championship events from the state. Lawmakers later repealed the law.
A study done in 2016 by the Bureau of Business and Economic Research at the University of Montana found those traveling to Missoula County spent $2.53 million for when attending Griz football games. Not hosting three home playoff games would cost the local economy $7.59 million, MUS estimated in testimony to the Legislature.