News68th Session


Bill defining ‘sex’ as binary becomes law in Montana

Gov. Greg Gianforte’s office says Senate Bill 458 allows transgender people to “identify with whatever gender, but not sex, they wish.”
Posted at 8:46 AM, May 23, 2023

Gov. Greg Gianforte’s office announced Saturday that the Republican governor has signed into law Senate Bill 458, legislation that inserts binary, reproduction-based definitions of “male,” “female” and “sex” into dozens of parts of state code.

The final version of the policy — the subject of heated partisan debate throughout the legislative session and a lobbying effort by one of Gianforte’s children — distinguishes males and females by the presence of XY or XX chromosomes and the production of sperm and eggs “under normal development.” The law, scheduled to take effect Oct. 1 this year, also presents a broad, overarching definition of sex, reports the Montana Free Press.

“In human beings, there are exactly two sexes, male and female, with two corresponding types of gametes. The sexes are determined by the biological and genetic indication of male or female, including sex chromosomes, naturally occurring sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender,” SB 458 says.

An amendment added to the bill late in the legislative session states that its definitions include people “who would otherwise fall within this definition” of male or female “but for a biological or genetic condition.” Some medical experts have said that phrasing doesn’t account for all intersex people with wide-ranging sex characteristics and that SB 458’s definitions are inherently flawed.

The bill, drafted in part by the conservative Montana Family Foundation, passed through the Legislature earlier this year largely along party lines, with Republicans in favor and Democrats opposed. The bill sponsor, Sen. Carl Glimm, R-Kila, and other supporters framed the policy as a response to a rise in people identifying as transgender and said it would help ensure that Montana law defines residents based on their “biological” sex as identified at birth.

The governor’s office echoed that rationale in a written statement Monday.

“The new law codifies the long-recognized, commonsense, immutable, biologically-based definition of sex, male and female, while protecting people born intersex and not infringing on transgender individuals’ ability to identify with whatever gender, but not sex, they wish,” said the governor’s press secretary, Kaitlin Price.

RELATED: Gianforte’s son one of many lobbying governor against trans bills

SB 458 is part of a slate of 2023 policies vocally opposed by LGBTQ+ civil rights groups and Democrats for what they cast as blatant discrimination against transgender people and those with intersex conditions. Critics, including transgender lawmakers Rep. SJ Howell and Rep. Zooey Zephyr, both Democrats from Missoula, said the bill would legally misdefine them and effectively write them out of state law.

“The reality is that there are people who are out living their lives, Montanans, our friends and community members, who who do not fit into these definitions just because of their medical and biological reality,” said Howell, who is transgender nonbinary, during an April House floor debate. “… Imagine my dismay at discovering that a state like Montana, my state, my home, says the government knows better. There’s two boxes, you got to choose, end of story.”

Dr. Erin Grantham, a pediatric urologist in Billings, said on Monday that the binary definition of sex in SB 458 “doesn’t make sense” and presents significant problems for intersex and transgender people, the medical community and various parts of state government tasked with enforcing the law.

“If you start with the assertion that there are exactly two sexes, which is the literature of the bill, that’s an inaccurate statement,” Grantham said. The law’s attempt to separate sex from gender and ignore a person’s psychology, she continued, is also problematic and unscientific. “You can legislate whatever you want. You can say that gravity only applies when you’re at sea level, but that doesn’t change the fact that there’s gravity when we walk up a hill.”

Grantham said Montana medical professionals and residents would benefit from a third “sex” option on birth certificates and a designation besides male or female on other identification documents. While intersex people make up roughly 1% of the population, passing legislation that boxes them out of law “is an absolutely terrible way to run a society,” Grantham said.

Other states, including Tennessee and Kansas, debated and passed legislation in the same vein this year. When it was first introduced, constitutional and civil rights law experts said Montana’s SB 458 would likely violate the federal right to equal protection laid out in the 14th Amendment as well as the Montana Constitution’s rights to privacy and dignity. No state or federal lawsuits had been announced against the law as of midday Monday.

Citing a fiscal analysis from nonpartisan legislative budget staff, Democrats in the statehouse alleged that SB 458 could put $7.5 billion in federal special revenue at risk if Montana is found to be out of compliance with federal anti-discrimination law and legal guidance. That analysis said it was difficult to pinpoint how much federal funding could be compromised if SB 458 became law, referencing variable interpretations and implementation of the policy by individual state departments.

“[T]he supervision by the governor over the executive branch will dictate to what extent these definitions are applied and used for day-to-day operations,” legislative staff wrote.

In response to questions about SB 458’s implementation, Price said “the governor’s office has confidence in agencies to implement the bill.”