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Montana Senate endorses bill to codify definition of biological sex in state law

Montana State Capitol
Posted at 6:19 PM, Mar 15, 2023

HELENA - Following a lengthy debate, the Montana Senate has given initial approval to a bill that would codify a definition of sex into state law based on reproductive systems — male and female.

Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila, passed 28-22 Wednesday on a preliminary vote. Supporters said it made a relatively simple change, but opponents warned the effects could be broader than expected.

SB 458 states, “In human beings, there are exactly two sexes, male and female, with two corresponding gametes.” It provides definitions for “male” and “female” based on the production of sperm and eggs, and it adds dozens of cross-references to those definitions and the one for “sex” across numerous sections of state law.

Glimm said the bill was about defining sex as a fixed concept, separate from gender. He pointed to issues like a 2022 court decision that blocked a law passed by the 2021 Legislature, which would have prevented transgender people from changing the sex on their birth certificate without a court order showing they had undergone surgical transition.

Glimm said he felt the judge had conflated sex and gender in his ruling.

“We can have policy discussions about where we want to use these terms later, but we need to define what those terms mean, because right now we're getting into lawsuits because these terms get conflated and we don't have clear definitions,” he said.

Opponents said SB 458’s definitions were too simplistic, and that it would open the door to confusion and possible discrimination for people whose development doesn’t fit exactly within them.

“It’s not simple, unlike what the sponsor said,” said Sen. Mary Ann Dunwell, D-Helena. “It’s going to be very difficult — impossible — to implement.”

Lawmakers also debated the potential fiscal impact of the bill. SB 458 did not have to pass the Senate by the general bill transmittal deadline earlier this month, because it was redirected to the Senate Finance and Claims Committee for a hearing on its financial effects.

Gov. Greg Gianforte’s budget office submitted an analysis saying it would have no fiscal impact to the state.

However, opponents of SB 458 argued that wasn’t a full picture. They said some state agencies had raised questions about how the bill would interact with federal policies on sex-based discrimination, which have been interpreted to cover gender identity.

They argued the state could be subject to financial consequences from the federal government if the bill is found to be in conflict.

“On a bill of this size and of this importance, to what degree is it responsible for our body to sign off on that bill that may or may not create substantial future cost to our general fund?” asked Sen. Chris Pope, D-Bozeman.

Opponents also said they expected the state would face extensive litigation to defend the bill in court.

Supporters of SB 458 said it wouldn’t be appropriate to include potential litigation costs in a fiscal analysis. They objected to arguments that the bill could lead to discrimination.

“It’s not because I don’t approve of your gender or how you want to live your lifestyle — that’s not what it’s about,” said Sen. Greg Hertz, R-Polson. “This bill is about a definition, and we all know how important definitions are in our legal system.”

The Senate did add an amendment to SB 458 Wednesday. The change, proposed by Sen. Brad Molnar, R-Laurel, added language that seeks to address concerns about how the bill would affect intersex people.

It would require those people to have their sex determined “based on the most predominant physical characteristics observed at the time of birth.”

Opponents of the bill questioned if that change was enough to resolve the issue.

SB 458 will have to pass a final vote on the Senate floor before passing on to the House.