Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Montana may face some legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity has been legal in Montana since 1997, and the state's enjoined sodomy law was legislatively repealed in 2013. Same-sex couples and families headed by same-sex couples are eligible for all of the protections available to opposite-sex married couples, as same-sex marriage has been recognized since November 2014.
State statutes do not directly address discrimination on the basis of sexual orientation and gender identity. The state's courts have struck down several bills targeting transgender people, ruling that discrimination against trans people was inherently a form of sex discrimination and therefore violated the equal protection clauses of the state constitution. The federal protections against employment discrimination based on sexual orientation or gender identity, established in 2020 by several landmark cases, apply in Montana. A number of cities also provide protections in housing and public accommodations.
History Among Native Americans, perceptions towards gender and sexuality were very different from that of the Western world. Among the Blackfeet people, the a'yai-kik-ahsi (literally acts like a woman) are male-bodied individuals who behave, dress, and live as women. Likewise, female-bodied individuals who act and behave as men are known as awau-katsik-saki (literally warrior woman) or ninauh-oskiti-pahpyaki (literally manly-hearted woman). The Gros Ventre, the Cheyenne, the Assiniboine and the Crow refer to male-to-female individuals as athuth, he'émáné'e, wįktą and bate (or badé), respectively, whereas female-to-male people are known as hetanémáné'e among the Cheyenne. The bate would perform domestic tasks (such as cooking and needlework), dress as women and even marry. Osh-Tisch, one of the most famous Crow bate, and others were forced by an American agent in the 1890s to wear male clothes and perform manual labor, to which the other Crows protested "saying it was against [their] nature".Sabine Lang, Men as Women, Women as Men , 2010
The Montana Territory adopted its first criminal code in 1865. It included a provision prohibiting sodomy ("crime against nature") with five years' to life imprisonment. In 1878, Montana saw one of the earliest recorded sodomy cases in the United States; in Territory v. Mahaffey, a man was convicted of sexual relations with a 14-year-old boy. In 1915, the Montana Supreme Court ruled that fellatio (oral sex), whether heterosexual or homosexual, was also criminal. Over the years, the courts convicted multiple people of sodomy, even between consenting adults.
In 1972, the Montana Legislature rejected a proposal that read "private sexual acts between consenting adults do not constitute a crime", by a 69–16 vote. In 1973, a new criminal code was enacted. Sodomy was renamed "deviate sexual conduct", made applicable only to people of the same sex (thus legalizing heterosexual oral and anal sex), and punishable by up to ten years' imprisonment and a possible fine of 50,000 dollars. A 1989 sex offender registration law further required anyone convicted of sodomy to register with the local chief of police and report any change in address.
Legality of same-sex sexual activity Montana revised its Criminal Code in 1973 and retained its anti-sodomy statute. In 1991, the Montana Legislature made its rape and sexual assault laws gender-neutral, providing for a uniform penalty for both heterosexual and homosexual rape (minimum two years' imprisonment). Attempts to repeal the state's sodomy law failed in 1993 and 1995. In 1997, the Montana Supreme Court held in Gryczan v. State that the state law prohibiting same-sex sexual contact between consenting adults was unconstitutional.Jason Pierceson, Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada (Temple University Press, 2005), 83-5, available online. Retrieved April 14, 2011 Justice James C. Nelson, writing for the 6–1 majority, stated:
Attempts to repeal the statute failed in 1999, 2001 and 2011.Billings Gazette: Charles S. Johnson, "Montana House refuses to blast gay sex ban bill out of committee," March 29, 2011. Retrieved April 14, 2011
On February 20, 2013, the Montana State Senate passed a bill, by a vote of 38 to 11 vote, that repealed part of the sodomy statute dealing with consenting adults. On April 10, 2013, the Montana House of Representatives passed the bill by a vote of 64 to 35. Governor Steve Bullock signed the legislation into law on April 18.
Recognition of same-sex relationships
A federal court ruled the state's ban on same-sex marriage unconstitutional on November 19, 2014. Judge Brian Morris issued an injunction against the state's enforcement of its ban that took effect immediately. The state's appeal to the Ninth Circuit Court of Appeals was mooted when the U.S. Supreme Court ruled in Obergefell v. Hodges on June 26, 2015, that Ohio's ban on same-sex marriage is unconstitutional, striking down every remaining state ban.
Montana voters had adopted a constitutional amendment in November 2004 that defined marriage as the union of a man and a woman.CNN: 2004 Ballot Measures. Retrieved April 14, 2011 Similar restrictions appear in the state statutes.Human Resources Campaign: Montana Marriage/Relationship Recognition Law . Retrieved April 14, 2011
The Montana Supreme Court recognized a common law same-sex marriage as retroactively valid in Adami v. Nelson on December 10, 2019.Adami v. Nelson (In re J.K.N.A.), 398 Mont. 72, 454 P.3d 642, 2019 MT 286 (Mont. 2019)
Adoption and parenting Montana permits adoption by individuals, and there are no explicit prohibitions on adoption by same-sex couples or on second-parent adoption. Lesbian couples have access to assisted reproduction services, such as in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but only if the parents are married.
Montana law does not regulate the practice of surrogacy, but courts are generally favorable to the process. Generally, courts will grant pre-birth parentage orders to married or unmarried couples and individuals when there is a genetic relationship to the child. The availability of parentage orders to individuals and couples with no genetic link to a child is more often determined on a case-by-case basis. Couples using the traditional surrogacy process may require a post-birth hearing or adoption to obtain legal rights to their child.
In Kulstad v. Maniaci, Barbara Maniaci refused to allow Michelle Kulstad to see the children they had raised together and who had legally been adopted only by Maniaci, but the trial court sided with Kulstad and granted her parental rights. The Montana Supreme Court affirmed this ruling 6–1 on October 7, 2009, setting precedent allowing for future stepparent adoptions by same-sex couples statewide.Human Resources Campaign: Montana Adoption Law . Retrieved April 14, 2011
Discrimination protections
Montana, by executive order, prohibits discrimination on the bias of sexual orientation and gender identity in state employment and state (sub)contractors. In 2000, Governor Marc Racicot first issued state personnel rules prohibiting discrimination and harassment on the basis of sexual orientation with respect to employment by state government. In November 2008, Governor Brian Schweitzer issued Executive Order No. 41-2008, broadening the government non-discrimination provisions. In January 2016, Governor Steve Bullock expanded the protections to cover gender identity and expanded it to state contractors and subcontractors.
On February 23, 2011, the Montana House of Representatives passed, by a 62–37 vote, a bill that would have prohibited local municipalities from adopting anti-discrimination categories not protected in the state law. The bill died in the Montana State Senate's Standing Committee on April 28, 2011.
The following Montana jurisdictions have ordinances prohibiting discrimination on the basis of sexual orientation and gender identity in both public and private employment, housing and public accommodations: Bozeman, Butte-Silver Bow County, Helena, Missoula, and Whitefish. Missoula County prohibits discrimination against county employees only.
In April 2021, Governor Greg Gianforte signed legislation into law granting people the right to discriminate if their religious beliefs are "substantially burdened". The bill is widely viewed as allowing a "license to discriminate" against LGBTQ people.
Bostock v. Clayton County
On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, consolidated with Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.
Hate crime law Montana's hate crime statutes do not include sexual orientation or gender identity as protected grounds.Human Resources Campaign: Montana Hate Crimes Law . Retrieved April 14, 2011 Hate crimes committed on the basis of the victim's sexual orientation or gender identity can be prosecuted in federal courts under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which was signed into law in October 2009 by President Barack Obama.
Flag law In May 2025, the state passed HB 819, a "neutrality" law that prohibits the official government display of flags that "represent a political party, race, sexual orientation, gender or political ideology". A "flag" is defined as a physical or digital installation on a "flagpole, building, wall, vehicle, or other structure", and exempts official governmental, territorial, and school flags, "official historical flags" (such as the Gadsden flag), and flags that represent law enforcement (such as the thin blue line).
The law has been interpreted as to prohibit the official display of Pride flags by governments and schools. As a loophole in the law, the city of Missoula—which had not yet adopted a municipal flag—passed a resolution to make a rainbow pride flag an official flag of the city—thus authorizing its display. Due to the wording of the bill, this effectively exempts the rainbow flag state-wide.
Transgender rights
Recognition of gender identity In May 2023, Senate Bill 458 was signed into law by Governor Greg Gianforte; the bill codified a biological definition of "sex" in state law as being an immutable male-female binary that is determined at birth and cannot be changed. In February 2025, following a suit raised by a group of transgender and intersex residents, SB 458 was struck down by District Judge Leslie Halligan as being in violation of the equal protection clauses of the Constitution of Montana. Halligan ruled that the bill "leaves a gap in protection against sex discrimination for individuals whose gender identities do not align with their biological sex, as such interest would be permitting sex discrimination towards a minority population, in violation of the policy of the State of Montana."