Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Montana may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in Montana since 1997. 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 address discrimination on the basis of sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law. 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".
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 and homosexual, was also criminal. Over the years, the courts convicted multiple people of sodomy, even 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. Justice James C. Nelson, writing for the 6–1 majority, stated:
Attempts to repeal the statute failed in 1999, 2001 and 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. Similar restrictions appear in the state statutes.
The Montana Supreme Court recognized a common law same-sex marriage as retroactively valid in Adami v. Nelson on December 10, 2019.