The effort is part of a growing trend across the country to narrowly define sex, leaving out transgender and non-conforming people from as many areas of the law as possible.

Orion Rummler

LGBTQ+ Reporter
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Published
March 29, 2023, 1:51 p.m. PT

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A bill advancing through Montana’s statehouse would legally define a man as someone who produces sperm and a woman as someone who produces eggs — and apply that definition to 40 aspects of the state’s legislative code, from employment protections and school sports teams to burial records and marriage licenses.

The 60-page bill, which is being considered in the House after being passed by the state Senate on March 17, is an extreme example of a trend growing across the country this year: anti-trans bills that focus on narrowly defining sex. LGBTQ+ advocates say it’s part of an attempt to totally push transgender people out of public life by excluding them from as many areas of law as possible.

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If the bill becomes law, it’s unclear how its directives would be carried out, and legal experts say its provisions would be easily challenged in court. But the immediate effect would be to prevent transgender and gender-nonconforming people from being protected by anti-discrimination laws, increase hostility and scrutiny of individual gender expression, and potentially cost the state billions in federal funds.

“With SB 458, they’re just jumping right to the finish line,” said SK Rossi, a longtime LGBTQ+ activist and lobbyist based in Montana. “They essentially just decided to wipe us from the code . . . which means you actually can’t function in public spaces or public systems as yourself without either lying to the state or to your local government about the gender you were given at birth, or misgendering yourself at every juncture of your public life.”

“It’s completely unworkable. And that’s the endgame,” Rossi said. “They want to make sure that there’s no avenue or system that recognizes who we are.”

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Logan Casey, senior policy researcher and adviser for the Movement Advancement Project, which monitors LGBTQ+ policy, has tracked 15 active bills introduced this year across 11 states that aim to define, or redefine, sex. Four additional bills were introduced in Mississippi but died in committee. Montana’s bill stands out as the most expansive one, Casey said. Not every bill is focused on defining men and women by their reproductive capacities, but all aim to make a legal distinction between men and women based on their characteristics at birth.

“I haven’t seen this many bills like this, let alone in this many states, let alone all in the same year,” he said.

Shawn Reagor, director of equality at the Montana Human Rights Network, said that the state has seen a “disturbing” rise in the quantity and harm of anti-LGBTQ+ bills compared with its last legislative session — and that more Republicans are rallying around them.

Montana’s proposed bill to define sex creates many unknowns, Reagor said — how it would be funded, how it would be implemented and how it would be enforced. It has the potential to impact transgender people in nearly all parts of their day-to-day life — through housing protections, identity documents, employment and health care.

“It entirely eliminates the existence of intersex people. It tries to force trans and nonbinary folks to misidentify their gender. And it has huge implications for the rest of the state, taking us back hundreds of years,” he said.

Lauren Wilson, president of the Montana Chapter of the Academy of Pediatrics, worries that SB 458 and a separate bill to ban gender-affirming care for transgender youth will prompt physicians to leave — and that pediatric specialists won’t want to come work in the state.

“We lost one of four pediatric endocrinologists licensed in the state. That is a big deal,” Wilson said, referring to a colleague who left Montana in March but who provided virtual coverage through the summer. “One of the four who lived here, left. And he told us to please go ahead and tell everyone that he is leaving, in part, due to the criminalization of best-practice care.”

The bill attempts to grapple with people who do not produce eggs or sperm by defining those who have “nonambiguous internal genitalia” as women and “nonambiguous external genitalia” as men. These definitions of sex are inaccurate, Wilson said. Intersex people exist who do not fit this description, despite the language referring to those who cannot produce eggs or sperm.

“They’re trying to categorize people by their reproductive capacity. There are a small number of people who produce both sperm and eggs,” she said. “So what that means is they’re essentially not people under the law in Montana.”

Depending on how Montana state agencies choose to implement the bill, if it passes into law, the state could lose federal funding up to $7.5 billion, according to a recent analysis by the state’s legislative fiscal division.

The analysis found that, overall, it is uncertain how the bill would impact state agencies or change the ways that they operate — since the legislation does not provide any direction to those agencies. But its definitions of sex run afoul of how the Biden administration has directed federal agencies to interpret Bostock v. Clayton County, the Supreme Court case that found gender identity to be a protected class of sex.

Federal laws often require states to comply with nondiscrimination laws to get federal funding, the analysis notes, and excluding transgender people may allow state or local governments to discriminate.

Ezra Ishmael Young, who teaches constitutional law at Cornell Law School, said Montana’s bill clearly violates the state’s own constitution, as well as the federal Constitution. In the 1970s, Montana added an “individual dignity” clause to its constitution — stating that “no person shall be denied the equal protection of the laws” or discriminated against by the state on the basis of sex.

Montana’s Supreme Court has held that the plain meaning of the dignity clause protects the intrinsic worth and basic humanity of its citizens — which is “directly at odds with what this bill aims to do,” Akilah Maya Deernose, staff attorney at the ACLU of Montana, told reporters at a virtual briefing on Wednesday.

“Given the scope of this law, it would make it very difficult for a trans person like myself to live my life as male in the state of Montana,” Young said. “That could chill people’s expression, it could make some people become recluses and not participate in public life because there’s not really a place for them to be themselves in public life.”

Montana’s proposed bill could be challenged under the equal protection clause of the 14th Amendment as well as the due process clause, said Paul Smith, a law professor at Georgetown University and counsel in the landmark Lawrence v. Texas case that invalidated sodomy law across the United States, during Wednesday’s briefing.

The ACLU and LGBTQ+ rights organization HRC have not committed to suing over the bill. Both are monitoring its progress. The ACLU, alongside other groups, has announced that it plans to sue if the state passes its gender-affirming care ban for minors into law.

Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said Montana’s bill — and others cropping up around the country that aim to create a legal definition of womanhood — are reminiscent of centuries’ worth of laws segregating women based on “biological capacities.” These bills, several of which are dubbed a “women’s bill of rights,” have the potential to worsen conditions for all women, she said.

While these bills are clearly targeting transgender people, Mar said, writing such strict definitions of sex into law would invite scrutiny and discrimination against anyone — especially women — who appear “too macho,” too gender-nonconforming, or who simply don’t align with traditional gender expressions.

“They rely on generalizations about who people are, based in this case on particular reproductive capacities, that fail to take into account the beautiful diversity of what it means to be a woman . . . in ways that are very reminiscent of earlier laws and policies that restricted what women could do based on biology,” Mar said.